X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
The recent testimony of Monica Goodling, the former White House liaison for Attorney General Alberto Gonzales, that “political considerations” influenced her decision to fill assistant U.S attorney positions is deeply troubling. Regardless of her expression of “regret” for violating the law, the fact that someone as unqualified as Goodling had a substantial role in the hiring of career federal prosecutors indicates that the current leadership of the U.S. Department of Justice (DOJ) has allowed politics to seep far too deeply in the prosecutorial process. The controversy over the firing of eight U.S. attorneys pales in comparison to the steps, no matter how small, taken by Goodling and others to politicize the process of selecting career prosecutors. The work of prosecuting cases for the federal government is performed by assistant U.S attorneys (AUSAs), who conduct grand jury investigations, appear in court on behalf of the federal government and argue appeals. This position has developed over time. Until the 1960s, a change in presidential administration meant that everyone in the U.S attorney’s office would resign and be replaced by those picked by the new U.S. attorney. In 1990, AUSAs received the full protections of the federal civil service system, including the requirement that they avoid partisan political activities. Today, many remain in office regardless of changes at the top, and many spend their entire careers working for DOJ. The one position that remains political is that of the U.S. attorney, who serves at the pleasure of the president, a point Gonzales has emphasized as the rationale for terminating the eight federal prosecutors. While political connections and campaign support are often criteria for becoming a U.S. attorney, the view has been that, upon Senate confirmation, the U.S. attorney will leave partisan politics aside. In firing the eight � or perhaps even nine � U.S. attorneys, the attorney general emphasized that interference with ongoing investigations for political reasons could not have been the motivation for the changes because career prosecutors are the bulwark against such interference. Indeed, an interesting aspect of the firings has been the near denigration of the importance of a U.S. attorney to the continued functioning of the office, the claim he or she has little direct effect on the day-to-day decisions on how to pursue cases. Goodling’s admission that she injected politics into the selection of AUSAs strikes at the core of the federal criminal justice system. When a federal prosecutor stands before a court, that person speaks for the United States, an awesome responsibility. Any taint on the perception of fairness and the evenhanded administration of justice causes irreparable harm to society. One routinely hears that U.S. attorney’s offices have 500 applicants for an open position. If one’s political background could give an edge in the selection process, then lawyers will try to establish their qualification for the position by demonstrating their political credentials, and perhaps even their zeal on behalf of the party. Infecting prosecutorial decisions If political affiliation plays a role in the selection process, is it a very short step to having it infect the decisions of the office. If politics helps one get the job, then it could also aid a career if cases are pursued to help the party. Federal prosecutors have enormous authority to initiate criminal investigations. A single grand jury subpoena can create a media frenzy and derail, if not destroy, a career. A search warrant, issued on the basis of hearsay and the inferences of an investigator or tips from an informant, can ruin a business when suspicion is cast on its operations. Especially for an elected official who might be from the opposition, even a hint of scandal from an investigation can be disastrous. One of the most important roles played by DOJ is the investigation and prosecution of state and local corruption. In recent years, governors, state legislators, mayors and others have been successfully prosecuted by U.S. attorney’s offices. These cases are difficult to investigate, and any decision to prosecute must be reached after careful consideration about how the public will perceive the fairness of that determination. If AUSAs are chosen in any way based on their political affiliation, then the credibility of the federal government in such cases is lost. The U.S. attorney is a political creature, but career prosecutors are the defense against allowing politics to rule the exercise of prosecutorial discretion. That means personality and political considerations are irrelevant to a case, and the decision is based solely on the evidence. Politics cannot have a role in the selection of AUSAs if we hope to have an effective DOJ. To allow someone in a position like Goodling’s, particularly a person with almost no prosecutorial or legal practice experience, to have a say in the hiring of AUSAs sends a message that politics is important in the selection process. U.S. attorneys can read signals from the top � if the leadership of DOJ considers politics important in hiring, then it may well follow suit. For the sake of the credibility of federal prosecutions, there can be no more Monica Goodlings running loose in the hiring process, or the regret will run far deeper than anyone can imagine. Peter J. Henning is a professor of law at Wayne State University Law School in Detroit, and a former federal prosecutor.

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.