The National Association of Assistant U.S. Attorneys, which represents 5,300 federal prosecutors around the country, is urging Barack Obama to keep some top incumbent U.S. attorneys around the country and not fire all 93 wholesale.
The NAAUSA, in a letter recently sent to Obama and his Justice Department transition team, urged Obama to “consider the reappointment of such incumbent United States attorneys who have provided exceptional service during their tenure.” The letter did not name any individuals.
The group also urged Obama’s team not to fire U.S. attorneys until replacements are made, for the sake of an “orderly transition.”
“We respectfully submit that, while this approach may be politically expedient, it is not consistent with the best interest of administration of the United States Attorneys Offices and the advancement of their mission,” states the letter, signed by NAAUSA president Richard Delonis.
Firing U.S. attorneys en masse could “impair the continuity of leadership in the United States Attorneys’ Offices,” stated the NAAUSA, because there could be several interim appointments before a permanent replacement.
The issue of how Obama will appoint U.S. attorneys — whether he will fire them all, as did Clinton, or just fire some on a case-by-case basis — will be closely watched. Obama is sure to proceed cautiously, given the explosive scandal under the Bush administration, in which a handful of U.S. attorneys were fired for political reasons.
Obama’s transition team did not return calls for comment, and no public announcements have been made on the issue.
Most legal observors interviewed agree with the NAAUSA and guess that Obama will not do a wholesale firing of all 93 U.S. attorneys. For one thing, he has already indicated he will keep Patrick Fitzgerald, who is in the middle of prosecuting Illinois Governor Rod Blagojavich.
He also may have to keep others involved in high-profile prosecutions, particularly of Democratic officials, including the U.S. attorney in New Mexico. In August, it became public that federal prosecutors were investigating Governor Bill Richardson’s relationship with a state contractor. There is no indication that Richardson is the target.
“There are going to be exceptional circumstances where no immediate departure is warranted…in districts that are in the midst of sensitive cases,” said Kendall Coffey, a former U.S. attorney for the Southern District of Florida and a partner at Coffey Burlington in Miami.
Coffey said that each state needs to start activating its nominating commissions quickly, and agreed with the NAAUSA that wholesale firing would lead to disruption.
“One of the large concerns is that during the transition process, U.S. attorney offices lose momentum due to the uncertainy during leadership,” he said. “Every district should start developing an efficient and fair process for getting new U.S. attorneys in place. There needs to be a captain of the ship.”
But another former U.S. attorney under President Bush disagreed. Matthew Orwig, former U.S. attorney for the Eastern District of Texas and now managing partner of the Dallas office of Sonnenschein Nath & Rosenthal, said Obama should fire all the U.S. attorneys.
“There is a general consideration that people in those jobs include people who were added late in the term and were very political and less qualified,” he said. “They did not come from the district but were sent from Washington and were political awards. What I think ought to happen is that there should be an orderly transition but he should make his own appointments. They should plan on being gone by March.”
Time is also of the essence, Orwig said, because as the process drags on, U.S. attorneys could bring high-profile cases — “echoes of Pat Fitzgerald” — to hang onto their jobs.
In fact, some states are not waiting for direction and are already starting to gear up judicial nominating commissions to begin taking applications and interviewing applicants for arguably the most important law enforcement job in the state.
Alabama has taken the lead and has two competing judicial nominating commissions conducting interviews for all three U.S. attorney positions this weekend — one led by the state Democratic Party, and one by U.S. Representative Artur Davis, D-Ala.
According to Sarah Kate Sullivan, Davis’ press secretary, he set up the U.S. attorney vetting committee, comprised of law professors and former judges, to make sure the selection is made strictly out of merit in a transparent process.
Davis — a former law school classmate of Obama’s and one of the first congressmen to support him — is apparently acting out of an abundance of caution in light of a recent public scandal involving the prosecution of a former governor and accusations that it was politically motivated.
“I have asked this outstanding panel to assess potential candidates based on three criteria: their demonstrated legal acumen, their experience and their reputations for integrity and independence,” said Davis in a statement to The National Law Journal. “These factors, and not a history of political activity or loyalty, ought to determine who will hold lifetime judicial appointments and who will wield the enormous discretionary power of serving as chief federal prosecutors.”
The Alabama Democratic Party’s vetting committee is comprised of party heavyweights and was activated the day after the election.
Both are quickly working to send U.S. attorney picks to Obama in the next couple of weeks, even though neither was officially asked to.
Jim Spearman, executive director of the Alabama Democratic Party, said that his party is “doing what was historically done,” and noted that a government report stated that, in the absence of a senator from the president’s party, the state can use other options to nominate U.S. attorneys. Alabama has no Democratic senator.
As to Davis’ desire to make the committee nonpolitical, Spearman said, “it’s all political anyway. He’s well within his rights to make a recommendation to the president, and so are we.”
The Southern District of New York is also reportedly gearing up its judicial nominating commission, according to Justice Department sources, and several prominent lawyers in Miami have been getting feelers about the job.
In its letter, the NAAUSA also advised Obama to choose U.S. attorneys possessing three qualities — strong leadership skills “whether from the military, private practice or prior service in a United States Attorneys’ Office,” substantial litigation experience and high ethics and integrity.
“As recent events have demonstrated, decisions concerning the operations of the United States Attorneys’ Offices must be made without regard to politics or the appearance that they have been influenced by politics,” states the letter. “Failing to carefully recognize this can quickly undermine the public’s confidence in the Department of Justice and in the nation’s administration of justice.”
The NAAUSA, in a separate letter, urged Obama to keep Ken Melson as director of the Executive Office of the U.S. Attorney. Appointed by former Attorney General Alberto Gonzales, Melson is highly regarded. The EOUSA director maintains day-to-day operations for all U.S. attorney offices and serves as liaison with the Justice Department and the White House.