A bit of this site’s history and reputation is bound up with its role reporting on the US Attorney Firing Scandal in 2006 and 2007. So with that in mind I wanted to share a few thoughts on the news reported yesterday that Attorney General Jeff Sessions had requested the resignation of the remaining 46 US Attorneys who had not already resigned.
The first and most important thing to understand is that while there may be legitimate controversy here, this is qualitatively different from what happened after the 2006 mid-term elections. US Attorneys are political appointees and it is the norm that they will leave office when a new President enters the White House, especially if it’s a new President of the opposite political party. That can happen quickly or slowly. President Obama had Bush US Attorneys stay on where possible until his nominees were confirmed. But it always happens, albeit with sometimes a handful being asked to continue in office under the new President.
A bit of explanation is required to understand what the issue back in 2006 and 2007 was. Bush partisans at the time rather dishonestly argued that US Attorneys are political appointees and serve at the President’s pleasure. That’s true. As I just noted, it’s the norm for Presidents to request their resignations at some point early in their term of office. In most cases, they resign on their own. There are 94 US Attorney districts. So about half had already left.
What is quite extraordinary is for a US Attorney to be fired or asked to resign – except for some clear dereliction of duty – in the middle of a President’s term.
What the Bush White House and DOJ had done was quietly dismiss eight US Attorneys. In the abstract, there’s no reason a President can’t simply decide to mix it up, give someone else a try. But in practice, it raised an obvious question: Why?
What became clear over weeks and months was that in different ways each prosecutor had run afoul of political appointees in the department of Justice because of how they ran their office. Specifically, they had refused to play ball in the Bush DOJ’s effort to use their prosecutorial power to gin up “voter fraud” prosecutions as part of a larger plan to suppress minority and Democratic voting. Trying to use the government’s policing power to drive election outcomes is of course the greatest sort of abuse of governmental power. That’s what made it a big scandal.
In other words, the oddity of the firings was the first clue. The scandal was this underlying abuse of power.
What makes last night’s actions at least odd and ill-conceived was its peremptoriness. After giving no guidance at all for a month in a half, Sessions insisted on immediate resignations from all 46 remaining US Attorneys. At a minimum that’s disruptive to the management of each office. It does nothing good for good government. Personally, having watched the administration so far, I would not rule out the matter being handled in this way for the specific reason of causing disruption and causing controversy. It’s clear that some amount of the roll out of original immigration executive order was designed to get people outraged and to drive protests. The problem was that it was so rushed and ill-conceived that the White House ended up getting beaten in the courts. Disruption on the White House’s own terms ended up blowing up in the President’s face.
The other oddity here is the decision to fire Manhattan US Attorney (officially, the Southern District of New York) Preet Bharara. Trump met with Bharara at the end of November and was asked to stay on. That raised a lot of eyebrows since he is a former aide to Sen.Schumer (plugged into Democratic politics and legal circles) and a hard-charging prosecutor. Notably, he is conducting an on-going investigation of the city’s Democratic Mayor, Bill de Blasio. He’s also investigated Democratic Gov. Andrew Cuomo and sent the state’s extremely powerful Democratic House Speaker Sheldon Silver to prison. Was Trump keeping Bharara in office to keep the heat on de Blasio? Who knows? Notably, Bharara also has an on-going investigation of Fox News. And just days ago a group of public interest groups asked him to begin an investigation of the Trump Organization.
The real oddity with Bharara is not that his tenure is any more sacrosanct than any of the other 45. It’s why Trump would have taken the highly conspicuous and odd step of retaining him only to turn around and fire him. It could be as simple as the fact that there’s little consistency to anything Trump does (sufficient explanation). It could be that Steve Bannon or Jeff Sessions had other ideas and Trump’s initial decision was more impulsive than strategic (sufficient explanation). Or it could be something darker and more corrupt. We do not know.
We shouldn’t read too much into Bharara’s refusal to resign and subsequently firing early this afternoon. That’s basically just a flourish, though one which is understandable and one he’s entitled to.
I did not resign. Moments ago I was fired. Being the US Attorney in SDNY will forever be the greatest honor of my professional life.
— Preet Bharara (@PreetBharara) March 11, 2017
The big story here is that while last night’s news was sloppy and ugly it’s nothing like what happened in 2006. It’s no different – other than the jaggedness – than what most presidents do.
But there’s one catch.
US Attorneys are the line officers of the rule of law in the US on the federal level. If you operate by corruption or want to use the policing power for political purposes, these are offices that a President must fill with reliables. We should not rule out that something happened in recent days which made it necessary to fire one or more of the 46 and that firing them all was a convenient and opaque way of doing so. More directly, we should expect that the White House will try to fill some or all of these positions with men and women who will be tasked with abusing their powers or who the White House deems reliable enough that they will be obedient and not take steps to keep the President or his allies or business partners from abusing their offices or committing crimes. This all must be watched very closely.
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