Justice did not serve its prosecutors

By HARRY LITMAN
LOS ANGELES TIMES
As a former federal prosecutor, Justice Department official and U.S. attorney, I have viewed claims about the politicization of the Justice Department with skepticism. Both the law and the culture of the department historically have insulated federal prosecutors from the pressures of partisan politics.
But this time, something went badly awry.
Last year, the Bush administration fired a number of U.S. attorneys en masse. Since then, it has steadfastly portrayed the removals as routine personnel decisions. They were anything but routine.
The administration has turned over to Congress documents and e-mails that chronicle a process designed to winnow out politically disfavored prosecutors. Even worse, that process apparently was run out of the attorney general's office in concert with the White House. In the wake of these revelations, D. Kyle Sampson, the chief of staff to Attorney General Alberto R. Gonzales, resigned, and some in Congress are calling for Gonzales to step down.
The documents and e-mails reveal unusual steps that made federal prosecutors -- not just those who were discharged -- vulnerable to entirely inappropriate political pressure.
First came the decision, which appears to have originated in the White House and taken final shape in the Justice Department, to fire a select group of U.S. attorneys with two years remaining in the president's second term. The decision itself was not necessarily sinister, although it was ill-considered. U.S. attorneys expect to be asked to resign shortly after a change of political party in the White House, and their offices and the law-enforcement community plan for that transition. They also understand that politics play an important role in their selections. But once they are in office, U.S. attorneys are supposed to operate without political interference.
So how did partisan politics infiltrate the process? As these newly released e-mails show, a few political appointees in the Justice Department (in collaboration with the White House counsel's office) were put in charge of drawing up a target list of U.S. attorneys.
Loyalty test
The most startling new document is a March 2005 e-mail from Sampson to Harriet E. Miers, the White House counsel. It ranked all 93 U.S. attorneys, singling out for praise those who "exhibited loyalty" to the administration and for censure those "weak U.S. attorneys who have been ineffectual managers and prosecutors, chafed against administration initiatives, etc."
One particularly eyebrow-raising detail: Sampson's list of "good" U.S. attorneys included Kevin Ryan of San Francisco and David Iglesias of New Mexico, both of whom were fired. Ryan's tenure was widely considered within the department to be a case study in mismanagement. His inclusion rebuts any suggestion that the list was driven by performance. Iglesias' inclusion, by contrast, underscores the dominant role that politics played in at least some firings. The only explanation for his fall to disfavored status is the intervention of political heavyweights in New Mexico.
As the investigations continue, it will be important to determine how, and with input from whom, Sampson generated and revised the list of potential casualties. I continue to think -- and hope -- that most officials in the Justice Department know and respect the boundaries that protect prosecutors from political influence.
It's tempting to paint Sampson as the architect of this mess. But the ultimate dereliction here, unfortunately, appears to rest higher up. In his news conference last week, Gonzales said, "I accept responsibility for everything that happens here within this department, but when you have 110,000 people working in the department, obviously there are going to be decisions made that I'm not aware of in real time." That's a less than compelling excuse. The decisions in question were the firing of federal prosecutors -- at least in part for partisan political reasons -- and they were being made 50 yards down the hall from his office.
It's to be expected that senior Justice Department officials will feel political heat about certain prosecutorial decisions. But it is essential that they protect the integrity of the process and the prosecutors who serve under them.
The attorney general should have pushed back (or politely demurred) when political actors came calling for the scalps of his prosecutors. He did not, and now he stands at risk of becoming himself a casualty of a wrathful Congress. But that's little consolation to those who care about the best traditions of the Justice Department.
Litman was a U.S. attorney in the western district of Pennsylvania.