And Now The Justice Department Eight

Stephen J. Fortunato Jr.

An indispensable operating principle of any viable democracy is that the judicial branch of government function free from interference by the executive or the legislature. The other hallmarks of democracy – regular elections, freedom of speech and press, written laws and administrative procedures, etc. – are all hobbled, if not nullified, if judges and other judicial system officers are subject to coercion, whether direct or oblique, by external forces.

President Bush has remained in his bunker during this controversy, leaving it to Attorney General Alberto Gonzales and other DOJ officials to besmirch the reputations of the prosecutors,

Over the past decade, the focus of those defending an independent judiciary has been to publicly defend judges from the intemperate attacks of the likes of the deposed House Majority Leader, Rep. Tom Delay (R‑Texas), who regularly took to the House floor to call for the impeachment of judges who made rulings he disagreed with. Less strident but more insidious than Delay’s brand of bluster, the Bush administration and its supporters, with their bizarre and dangerous notions of an imperial presidency and unitary executive, have been stacking the federal bench with judges who they believe will genuflect to their will. Following its continual attacks on activist” judges and its regular mischaracterization of the historic role of the judiciary, the beleaguered and dysfunctional Bush administration now begins to devour its own with an unprecedented group firing of eight Republican U.S. Attorneys.

As has been widely reported in the media, the administration fired eight highly regarded U. S. Attorneys – seven of them on Dec. 7 – without giving reasons to any of them. Though all of them apparently enjoyed as much professional esteem and public approval as any law enforcement official can attract, the terminations ignited a public controversy that provoked the Justice Department to spin that the U.S. Attorneys were not as competent and effective as they and their supporters claimed and that, in any event, wouldn’t it be nice to give others an opportunity to enhance their resumes by service in such an exalted position. 

And indeed the position of U.S. Attorney is exalted – and powerful. Like their state counterparts serving as attorneys general, federal prosecutors have a virtually limitless discretion as to who to charge with what criminal offenses and when to do it. They are constrained by the law and the facts surrounding a criminal investigation, but their conscience is their ultimate guide. U.S. Attorneys are members of the executive branch of government, but unlike a cabinet officer or undersecretary serving in a department such as Education or Transportation, they do not serve to carry out the policies and will of a president or his satrap serving as attorney general – but rather to apply the law to individual cases. With the grand jury as one of their tools, Sol Wachtler, former Chief Justice of the New York Court of Appeals, is said to have remarked that a zealous prosecutor could indict a ham sandwich.”

Not surprisingly, the Justice Department Eight are fighting back, albeit prompted by congressional subpoenas. In testimony before the Senate Judiciary Committee on March 6, former U.S. Attorney David Iglesias of New Mexico testified that he had been contacted by two federal New Mexico lawmakers, both Republicans, Sen. Pete Domenici and Rep. Heather Wilson, about sealed indictments and his ongoing investigation into a construction industry corruption scandal that may have involved Democrats. Domenici, Iglesias said, called him at home to encourage speedier action in time for a forthcoming election. 

That same day, Sen. Dianne Feinstein (D‑Calif.) came to the defense of Carol Lam, the fired U. S. Attorney for the Southern District of California, by presenting a Justice Department letter lauding the office of U.S. Attorney Lam for its efforts in immigration prosecutions; this was a direct rejoinder to the Justice Department’s belated assertion that their reason for terminating Lam was her failure to vigorously enforce immigration laws. A more plausible explanation for her termination is that Lam’s diligent prosecution of the bribery glutton, Rep. Randy Duke” Cunningham (R‑Calif.), into a federal prison enraged his political and financial benefactors in the Republican hierarchy.

Unfortunately, when Sen. Arlen Spector (R.-Pa.) asked her whether she thought her termination was improper,” she refused to give a direct answer, saying she could not comment because no reasons had been given to her for her firing. She surely could have appropriately told the senators that while U. S. Attorneys serve at the pleasure of the president, the firing of a U. S. Attorney with an unblemished record in the middle of her term, without any explanation, is both improper and unprincipled.

President Bush has remained in his bunker during this controversy, leaving it to Attorney General Alberto Gonzales and other DOJ officials to besmirch the reputations of the prosecutors. Congenitally incapable of learning from past mistakes, Bush’s minions plowed forward, unbowed, as they did in the recent fiasco involving the administration’s efforts to drive private volunteer lawyers off the cases of Guantanamo Bay detainees. It will be remembered that Charles D. Stimpson, the deputy assistant secretary of defense for detainee affairs, publicly questioned the judgment and patriotism of these pro bono defense attorneys, and urged corporate clients of their firms to take business elsewhere if the lawyers refused to abandon their clients confined at Guantanamo. To their credit, many of the corporations, including General Electric, issued statements commending the lawyers, and the resistance to Stimpson was so overwhelming, he chose to resign.

As this sorry episode at the Department of Justice continues to unfold, its impact legally and politically remains uncertain. One thing is sure, however: The remaining U. S. Attorneys, as well as future aspirants to that position, will often look where they should not be looking when confronted with a controversial case, that is, over their shoulders at some highly-placed political official or operative. The neo-conservative attack on an independent judicial system has temporarily won another skirmish, though their motives and objectives, not to mention their desperate scorched-earth tactics, are made more visible with this putsch against Republican prosecutors. 

Those who seek to undermine an independent judicial system by baseless attacks on judges, prosecutors or defense attorneys would do well to heed the words of President John Adams as he reflected late in his life on his defense as a young man of the soldiers accused of killing colonists in the infamous Boston Massacre. Adams said that his defense of the soldiers, which resulted in threats to him and his family as well as the loss of half his law practice, was one of the best pieces of service I ever rendered my country.” George W. Bush, we know, is no John Adams.

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Stephen J. Fortunato Jr. was as an Associate Justice of the Rhode Island Superior Court for 13 years. He is now an Adjunct Professor at the Roger Williams University School of Law.
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