U.S. Attorneys and the “Pleasure of the President”

E-mail Lis

When I was first hired as a federal prosecutor by U.S. Attorney Mike McKay, a President George H.W. Bush appointee, I was told that I would represent the interests of the American people, regardless of their political stripe. For the public to have confidence in our system of justice, he said, it was essential that my prosecutorial decisions be solely based on the rule of law.

Several years and two presidents later, Mike McKay’s younger brother John, along with seven other U.S. attorneys, were fired — perhaps for not being political enough.

“Big deal,” you may be thinking. U.S. attorneys serve “at the pleasure of the president.” Their employment is “at-will,” and they can be fired for “good cause, bad cause, or no cause at all,” right?

Not exactly — with employment at-will, an employee can be fired for any reason, except a prohibited one. And blatantly political decisions which undermine the credibility of the Department of Justice have long been considered improper.

“Being credible,” writes recently fired U.S. Attorney Bud Cummins for Salon.com, “is like being pregnant — you either are or you aren’t … Once you have given the public a reason to believe some of your decisions are improperly motivated, then they are going to question every decision you have made, or will make in the future.”

He goes on to provide a more tangible example of what’s at stake: “When a federal prosecutor sends FBI agents to your brother's house with an arrest warrant … you and the public at large must have absolute confidence that the sole reason for those actions is that….your brother intentionally committed a federal crime. Everyone must have confidence that the prosecutor exercised his or her vast discretion in a neutral and nonpartisan pursuit of the facts and the law.”

But speaking of credibility — don't the administration’s responses to this matter cry out for further scrutiny?

When the scandal first broke, White House advisor Karl Rove did not claim the firing of U.S. Attorney Carol Lam was in retaliation for her overseeing the bribery conviction of former congressman Randy “Duke” Cunningham (R-Ca.). Instead, said Rove, it resulted from her refusal to file immigration cases. Curious, given that just three months before she was dismissed, the Justice Department sent a letter to Sen. Dianne Feinstein (D-Ca.), indicating that Lam’s office had devoted “fully half of its assistant U.S. attorneys to prosecute criminal immigration cases.”

U.S. Attorneys John McKay and David Iglesias were both canned reportedly for “performance related” reasons after each refused to pursue non-existent charges against Democrats at the behest of prominent Republicans. Less than a month before his termination, McKay had been recommended for a federal judgeship; Iglesias had a 95 percent conviction rate. Both had received excellent performance reviews.

“I would simply ask that everybody who is playing politics with this,” Rove shot back on March 15 in a speech at Troy University in Alabama, “be asked to comment on what they think of the removal of 123 U.S. attorneys during the previous administration and see if they had the same, superheated political rhetoric that we’re having now.”

True, Presidents Clinton, George H.W. Bush and Reagan replaced 93 attorneys at the beginning of their administrations as part of the normal turnover involved in the alteration of power. But a report issued on Feb. 22 from the Congressional Research Service revealed that between 1981 and 2006, only five of the 486 attorneys failed to finish their four-year terms — and none were fired for political reasons.

Perhaps the most distburbing aspect of the U.S. attorney fiasco is that it echoes other recent personnel moves by the administration. As Jonathan Alter of Newsweek recounts, Treasury Secretary Paul O’Neill suggested that a second tax cut is unaffordable if we want to fight in Iraq . He was fired. President Bush’s economic advisor, Larry Lindsey said the war will cost between $100 billion and $200 billion (a gross underestimate, in retrospect). He was fired. Army Gen. Eric Shinseki advised that winning in Iraq will require several hundred thousand troops — and he was sent to early retirement. Meanwhile, CIA Director George Tenet, who presided over the greatest intelligence lapse in American history (9/11) and who reportedly, told the president before the war that it was a "slam-dunk" that Saddam Hussein possessed weapons of mass destruction, is awarded the presidential Medal of Freedom.

"Right now,” said Sen. Arlen Specter (R-Pa.) during recent congressional hearings about the U.S. attorney scandal, “it is generally acknowledged that the Department of Justice is in a state of disrepair, perhaps even dysfunctional, because of what has happened, with morale low, with U.S. attorneys across the country” not knowing “when another shoe may drop.”

On FOX News Sunday, former House Speaker Newt Gingrich said this of the handling of the U.S. attorneys: "This is the most mishandled, artificial, self-created mess that I can remember in the years, in the years I've been active in public life."

U.S. Attorney General Alberto Gonzales is scheduled to testify under oath before the Congress on April 17. Will his testimony bring “pleasure” to the president? Stay tuned.

Pleasure of the President Sources

Mike McKay—appointed by Bush I, brother of John McKay

At-will employment—good cause, etc.

Bud Cummins—Salon.com

Karl Rove—Lam—immigration cases

Lam—“fully half…”

Iglesias “performance related”;

McKay “performance related”

McKay “non-existent charges”

Less than a month before his termination, McKay had been recommended for a federal judgeship…

95% conviction rate

Both had received excellent performance reviews.

Rove quote: “I would simply ask…”

True, Presidents Clinton, George H.W. Bush and Reagan replaced 93 attorneys….

Treasury Secretary Paul O’Neill suggests that a second tax cut is unaffordable if we want to fight…Medal of Freedom

Specter quote

Gonzales to testify under oath…

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Lis Wiehl joined FOX News Channel as a legal analyst in October 2001. She is currently a professor of law at the New York Law School. Wiehl received her undergraduate degree from Barnard College in 1983 and received her Master of Arts in Literature from the University of Queensland in 1985. In addition, she earned her Juris Doctor from Harvard Law School in 1987. Lis is also the author of The 51% Minority — How Women Still Are Not Equal and What You Can Do About It. (Watch the Video) To read the rest of Lis's bio, click here.