Selection of U.S. Attorneys Questioned

Michael Hayes
WASHINGTON — In the wake of seven U.S. attorneys across the country being asked to step down earlier this month, critics of the administration, including Sen. Dianne Feinstein, D-Calif., have charged that the shakeup is a politically motivated attempt to alter the priorities of the nation’s top prosecutors and focus their attention on so-called morality offenses such as obscenity.

While officials at Justice have remained tight-lipped about the dismissals, insisting that the lawyers left of their own accord or because of poor performance, Feinstein said she knows of at least seven fired U.S. attorneys who were done in for political reasons.

Among those dismissed were Carol Lam of San Diego, Calif., whose office won a bribery conviction against Rep. Randolph "Duke" Cunningham, R-Calif., and prosecuted several members of the local City Council for corruption.

Also ordered to resign was Kevin Ryan, U.S. attorney in San Francisco, who was overseeing high-profile investigations into steroids use by Major League Baseball players and the backdating of stock options by Apple and other firms.

In a recent opinion piece in Reason Magazine, a libertarian journal, Radley Balko concurred with Feinstein, arguing that the firings were made to alter the makeup of Justice and, more specifically, to hone Attorney General Alberto Gonzales’ campaign against pornography.

“All of this grows even more troubling when you consider what the priorities of the current Justice Department actually are,” Balko wrote. “Gonzalez himself, for example, has that the top priority of his tenure at the Justice Department would be, of all things, the prosecution of pornography. Not child pornography, mind you. Regular, adult porn — the kind starring and bought, produced and sold by consenting adults.”

In August 2005, Law.com reported that interim U.S. Attorney Alex Acosta told his subordinates that Gonzales had directed him to make the prosecution of obscenity the top priority for his Miami field office.

The appointment of interim U.S. attorneys raises another controversial issue, Balko wrote, explaining that language in the reauthorization of the PATRIOT Act dramatically changes the confirmation process for federal prosecutors.

According to language inserted by Sen. Arlen Specter, R-Pa., the attorney general, on behalf of the president now has the power to appoint interim U.S. attorneys for the duration of the president’s term without approval from the Senate.

Traditionally, the top U.S. assistant attorney in each local office temporarily filled any vacancy, while home-state senators searched for candidates to present to the White House. In cases where the replacement process lasted more than four months, federal judges had the power to extend a temporary appointment or name a permanent successor, with Senate approval.

Feinstein and Rep. John Conyers, D-Mich., have introduced bills that would restore the power of federal judges in the appointment of U.S. attorneys. Specter has given his qualified support to Feinstein’s bill.

In the meantime, the Bush administration has appointed at least nine U.S. attorneys — most of them handpicked by Gonzales and each with strong ties to the administration. While Balko said it is no secret that U.S. attorneys are by definition political creatures, he said he was nonetheless concerned, citing the rising star of Pittsburgh-based U.S. Attorney Mary Beth Buchanan, who is best known for bringing obscenity charges against Extreme Associates and securing the conviction of actor Tommy Chong for selling glass bongs online.

“The most troubling thing about the Justice Department's recent dismissal of several U.S. attorneys, then, isn't that Gonzalez expects his subordinates to share his priorities,” Balko wrote. “What's most disturbing is what those priorities actually are.”

Buchanan has since been promoted. She now helms the Justice Department’s Office on Violence Against Women.

The Justice Department denied that politics played an inappropriate role in nominating U.S. attorneys.

“Allegations that politics inappropriately interfere with personnel decisions made about U.S. attorneys are reckless and plainly wrong,” Justice Department spokesman Brian Roehrkasse said. “The bottom line is that we nominate experienced attorneys who we believe can do the job.”

Former federal prosecutor and Loyola Law School Professor Laurie Levenson disagreed with the Justice Department’s assertion that nothing has changed in the appointment process for U.S. attorneys.

“Being named a U.S. attorney has become a prize for doing the bidding of the White House or administration,” Levenson said. “In the past, there had been a great deal of delegation to the local offices. Now, you have a consolidation of power in Washington.”

Jean Paul Bradshaw, a former prosecutor appointed under George H.W. Bush, agreed with Levenson that recent decisions by Gonzales signaled a change in policy.

“Under Reagan and the first Bush administration, we worked very hard to push the power out to the locals," Bradshaw said. “Local attorneys know how a case will play in their areas, what crimes are a problem. Ultimately, these decisions are better made locally.”

For Balko, the rather unprecedented decision to terminate so many U.S. attorneys without cause, combined with the administration’s tighter grip on the appointment process, are the opening salvos in a more serious campaign against so-called morality crimes such as obscenity, online gambling and marijuana.

1st Amendment attorney and FSC Chairman Jeffrey Douglas told XBIZ he wasn't certain that the changes at Justice were a direct attack on the adult entertainment industry.

"Look at some of the districts that are affected by this -- San Francisco and San Diego -- it's hard to say that this is anything more than a generic push against adult," Douglas said. "If the change were to occur in Los Angeles, where a 2257 prosecution would be brought, that would say something else. But in Los Angeles, the Bush administration is following the traditional process to replace the U.S. attorney."

In a Sacramento Bee editorial, the paper said the Senate should approve Feinstein’s bill immediately to “prevent an unwarranted tilt toward presidential power.”

Douglas said administration's attempt to evade Senate approval using the PATRIOT Act is the most upsetting element in the U.S. attorney saga.

"The administration's tactics are of great concern," Douglas said. "This is another example of what some have called the imperial or divine presidency."