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Exploding the Clinton-Did-It Defense

By Jerry Sanford
April 12, 2007

Editor’s Note: One of the questions from the furor over the Bush administration's firing of eight U.S. attorneys is how unusual the move was. Some Republicans argue that Bill Clinton did much worse by removing all 93 U.S. attorneys when he took office.

In this guest essay, veteran federal prosecutor Jerry Sanford addresses the Clinton-did-it defense:

It isn't surprising that the right wing resurrected the "Bill Clinton did it too" rationale to bail the Bush administration out of the recent United States attorneys scandal. But as the trail of lies leads deeper into the White House and the Justice Department, that comparison fades to black.

The egregious firing of eight United States attorneys last December was accomplished by using a little-known provision in a 2006 amendment to the Patriot Act that gave President Bush the authority to by-pass the traditional advice and consent of the U.S. Senate.

That blatant purge of top federal prosecutors was simply another arrogant and manipulative abuse of power by the Bush administration, designed to further its efforts to put this country under the control of one political party.

To put the issue in perspective, President Clinton did replace 93 United States attorneys. Whenever a new administration comes into office, the 93 existing U.S. attorneys are directed to submit their resignations, as are Cabinet secretaries and other presidential appointees.

Each U.S. attorney is the chief federal law enforcement officer in his or her federal judicial district and functions as a field extension of the Department of Justice. New U.S. attorneys are appointed, take an oath of office to uphold the Constitution and the laws of the United States, and are expected to exercise their authority fairly and independent of political influence. Though the position is political and a presidential appointment, it is highly competitive.

In most, if not all districts, attorneys submit applications and are then interviewed by a panel of United States district judges in the district. That vetting process winnows down to three names, which are given to the United States senators of the district's state.

The senators then rank the three names and submit them to the President for appointment. Once the appointment is made, the appointee is confirmed by the Senate.

Every U.S. attorney, upon accepting the appointment, knows that his or her term will end when the administration changes parties. If it ends earlier, the usual reasons are illness, death, voluntary resignation to take another position in government or private practice, and gross professional or personal misconduct.

More than 5,000 assistant U.S. attorneys (AUSAs), known as "line prosecutors," hold positions in the 93 districts. They are hired by the district's U.S. attorney and do not submit resignations or lose their positions by a change of administrations.

Although the contrary was true 20 years ago, the majority of AUSAs today are career prosecutors. They do not "serve at the pleasure of" the U.S. attorney or the President. Terminating an AUSA must be for specific cause and entails an exhaustive procedure through the Department of Justice bureaucracy.

As an assistant U.S. attorney in the Southern and Northern Districts of Florida for nearly 25 years, I served under, in this order, five different U.S. attorneys in Republican (Ford), Democratic (Carter), Republican (Bush), Democratic (Clinton) and Republican (Bush) administrations.

At least 93 separate U.S. attorneys were appointed with the change of each administration. The Congressional Research Service recently issued a report which showed that of 468 U.S. attorney confirmations over the last 25 years, only 10 left involuntarily. Two were fired outright for improper, and in one case, criminal conduct. Six others were implicated in news reports for "questionable" behavior. The CRS was unable to determine the cause for the last two.

In other words, the Bush administration fired almost as many U.S. attorneys in one week as had been let go over the past 25 years. The only apparent "misconduct" of the eight Bush appointees was their failure to prosecute Democrats before last year's mid-term election.

Frankly, I am outraged and disgusted by the conduct of Attorney General Alberto Gonzales and other high Justice Department and White House officials in the administration's U.S. attorney political purge. Their lies before congressional committees should be met with perjury charges.

The legal and ethical issues surrounding the firing of the eight U.S. attorneys, who have been subjected to smear campaigns and groundless accusations, demand a full inquiry into the misconduct and possible criminal actions of certain members of Congress, the Justice Department and the White House.

If evidence reveals that anyone interfered with an investigation in a U.S. attorney's office, obstruction of justice charges should be brought.

The worst President in history appointed an incompetent, corrupt and dishonest Attorney General, and that act resulted in a spreading stain on the Department of Justice.

Alberto Gonzales, with no experience as a prosecutor or in law enforcement, has done nothing but ratify and sanction George W. Bush's violations of federal law. His immediate removal, or resignation, would be a start in eradicating that stain and returning integrity to the Department of Justice.

Jerry Sanford is former managing assistant U.S. attorney in Gainesville, Florida. (This story previously appeared at Gainesville.com.)

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