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Older and Wiser Heads

justicestatue.jpgLast night I sat in the stately ceremonial courtroom in the United States Courthouse for the Southern District of New York. In the room were lawyers from some of the most powerful law firms in the country. There were current and former "career" DOJ employees, there were former political appointees.

Sitting on the bench was a panel of experts discussing the "Hiring, Retention, and Firing of United States Attorneys". It was hard to say who was more outraged by the current rape of the Department of Justice, the massacre of United States Attorneys or the the obliteration of the concept of the rule of law and impartial administration of justice: the republicans on the panel or the democrats.

This is NOT a partisan issue any more. Republicans who respect the law and revere the honor and traditions of the Department of Justice are just as horrified as anyone who regularly swims here in the Lake. So, I thought I would give you some idea of the thoughts and opinions (publicly expressed–The Law Journal even had a reporter there–so I'm not telling tales out of school) of people of far greater stature and experience than I on the havoc that has been wrought by this administration.

Arnold Burns former Deputy Attorney General under Ronald Reagan seemed truly distraught by this situation. He has gone so far as to write an OpEd for the NYTimes suggesting that the Attorney General be taken out of the President's Cabinet altogether and that DOJ become a totally merit based agency. 

His goal? "The goal is an apolitical Department of Justice."  He said that currently "DOJ has lost all its credibility. We have to address this both at the Main Justice level and in the US Attorney's Offices."

Alan Vinegrad, who spent 15 months as United States Attorney in the EDNY when he was appointed by the judges of that district after his predecessor resigned, moderated the program and did not pull any punches with his questions. He dove right into the issue of whether it is ever appropriate for a US Senator to have a role in complaining that a US Attorney is not taking care of a crime problem in his state.

On this, the panel was unanimous. There is NEVER EVER a right way for a Senator (or any other politician) to attempt to complain about an individual case. However, let's say the Senator felt that the US Attorney was not paying enough attention to a particular category of case. Well, in that circumstance, there would be a place for that Senator to complain–the Office of Legislative Affairs.  OLA's job is to act as a buffer and to insulate United States Attorneys from political pressure.

Do you honestly believe that someone who has been in the Senate as long as Pete Domenici wouldn't know that?  No wonder Iglesias felt sick to his stomach after the phone call. It's on a par with Comey wondering to himself whether or not he was going to have to "physically" intervene to prevent Gonzales from having Ashcroft sign on the dotted line during the Wednesday Night Ambush. And far from acting as a buffer from political pressure, it seems that Mr. Hertlinger thinks the current OLA's job is to stifle any former or current USA who gets ask to provide information to Congress. Yes, my blood is beginning to boil!

There was a great deal of discussion of ways to change the system by which Attorneys General and US Attorneys are selected and Arnold Burns' suggestion was that they serve for a longer fixed term that is NOT co-terminus with the President's. Such a system is currently in place for the FBI Director.

But Bernard Nussbaum, former Counsel to President Clinton, pointed out that current selection system (which is virtually the same way we pick and confirm federal judges) is not the problem.  He said "GOOD PEOPLE can make this system work."  [emphasis his].

This sentiment was echoed by former USA SDNY Mary Jo White, who pointed out that the so called "political" selection of US Attorneys had, at least in NY, in the main, resulted in a merit based selection. I can attest that, thanks in large measure to the truly bipartisan approach taken by Senators Moynihan and Javits and their reverence for excellence, and the really heavy lifting Chuck Schumer has done to continue in their footsteps, the Empire State has been particularly blessed in our US Attorneys. Some were/are better than others, but there hasn't been a wanker in generations.

Richard Briffault, the Joseph Chamberlain Professor of Legislation at Columbia Law School, echoed that as well. "The better and more professional the persons appointed, the more we want to support this system and keep them as holdovers [referring to President Carter's decision to allow USA SDNY Robert Fiske–a legend–to finish out his term which had two more years to go instead of replacing him with a Democrat when Carter took office]. The more partisan the appointees, the more we want to have them fired [when a new administration comes in].

Alan Vinegrad asked another question that brought a unanimous response from the panel when he wanted to know what the criteria for selective removal of USAs [as opposed to the wholesale removal when a new president is sworn in] would be. They all agreed, there have been only two reasons:


-severe management problems.           

That's it. 

When I say misconduct, we are talking about things like a US Attorney getting indicted himself. When I say major management problems, I'm talking about an office in complete disarray, the financials don't match up, the career people are leaving in droves, the judges are complaining.

Prof. Briffault pointed out that the Congressional Research Service did a little audit and found that in the 25 years from 1982 until the beginning of 2006, only 10, yes 10 TOTAL US Attorneys were selectively removed.

Mary Jo White had an interesting observation towards the end of the evening. After pointing out the tradition in the SDNY that in order to be considered to be USA there, you had to have served the office previously in a career capacity, and opining that it would not be fair to the USA to appoint someone who had never been a prosecutor before because they "wouldn't have a clue" of how to do the job; she noted that  "those who devised this plan were young political operatives with no understanding of DOJ or its traditions. Alberto Gonzales had no federal experience.  Harriet Myers had no federal experience."  Mary Jo, quite charitably, noted that they had no idea how DOJ is supposed to work and for 6 years had no experience with a Congress composed of a loyal opposition, so there were never any grownups in charge.

You can blame Rove. Like Tweety, you can say this has Cheney's fingerprints all over it.

But me, I blame the President. After the Wednesday Night Ambush, he knew he had principled people in pretty high places at DOJ. There WERE some grownups in charge. Instead of relying on that expertise and experience, he allowed Kyle Sampson to try to strip Comey of the DAG's traditional role with respect to supervision of the US Attorneys, and eventually, once Comey was gone, the power of the DAG's office was gone before McNulty came in, and Alberto Gonzales was installed as AG. He put the Kiddie Kampers in charge.

Last night there was talk of whether everyone hired in the last 6-8 months needs to go. Imagine how disruptive that would be to the Department's work. Comey was right, I don't know how you put the genie back in the bottle, or where you go to get the Department's reputation back.

So, the only good news here is for the criminals, oh yeah and the terrorists. I remember the days when Dave Kelley and Pat Fitzgerald with the support and, yes, insulation from Main Justice from Mary Jo White, were actually building cases and putting terrorists in jail. I remember when they were able to foil plots before anyone got hurt or any computer networks melted down. I remember when terrorist atrocities were met with competent evidence, indictments returned on probable cause and convictions gained after trial.

I remember what the rule of law looked like. More importantly, I remember what it felt like. It made me proud to be an American. It made me proud to know that although there were scary bad men out there who wanted to hurt us, grownups–talented, smart, hardworking, sincere and honorable grownups–were in charge. It was their respect for the Constitution, for both the spirit and the letter of the law THAT made me feel safe.

As long as our system of Justice and our whole country is in the hands of the Kiddie Kampers, no one will feel safe…because no one will be safe.

(Photo of a statue of justice via mindgutter.)

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In rugby, the looseheadprop is the player in the front row of the scrum, who has the ability to collapse the scrum, pretty much at will and without the referee knowing who did it.
While this can give the LHP's team a great tactical advantage, it also exposes scrum players from both teams to the dangers of catastrophic spinal cord injury.
Consequently, playing this position makes you understand your responsibility to put doing the right thing ahead of winning, and to think beyond your own wants and desires. It also makes you very law and order oriented.