Political loyalty vs.Prosecutorial independence?

An article by Scott Turow. Turow was an assistant
U.S. attorney in Chicago for eight years. His most recent novel is "Limitations."

Is political loyalty more important to the Bush Justice Department than prosecutorial independence?

To those of us who have been federal prosecutors, that's the critical question facing Attorney General Alberto R. Gonzales as he testifies before Congress this week on the firing of eight U.S. attorneys. We know what's at stake: a balance of power between the Justice Department and those who handle day-to-day prosecutions that is the bedrock of federal law enforcement.

Following the example of his two predecessors, then-U.S. Attorney Samuel K. Skinner had made pioneering use of the federal mail-fraud statute to break through the endemic corruption of Chicago's Democratic machine. But with Jimmy Carter's election the prior fall, Skinner -- an appointee of President Gerald R. Ford -- was planning to hand in his resignation. This had raised fears in the office that the local Democratic pols would use their pull in Washington to manipulate the appointment process and install a successor who would turn a blind eye to all the fixing and fraud going on. Some of the lawyers wanted me to find out if there was any legal basis for Skinner to hold on to his job.

I had the answer by the end of the day: No. The U.S. attorney, like most other members of the executive branch, serves at the pleasure of the president. Assuming that Carter wanted to make a change -- and the U.S. attorneys always left office when the White House fell into the hands of the opposing party -- Skinner would return to the private sector.


As it happened, things worked out well for everyone. Skinner eventually went on to become secretary of transportation and then briefly chief of staff to President George H.W. Bush, while Thomas P. Sullivan, the U.S. attorney appointed to succeed him, proved to be another independent and fearless prosecutor. Among his many achievements was initiating Operation Greylord, which unearthed a pattern of corruption in the state courts in Chicago.


Sullivan's tenure cemented a tradition of political independence in the day-to-day conduct of the U.S. attorney's office in Chicago, a let-the-chips-fall-where-they-may attitude in the pursuit of evidence and investigations that persists under current U.S. attorney Patrick J. Fitzgerald, who, like Skinner and Sullivan, has indicted and investigated both Republicans and Democrats.

Has that tradition been violated? In defending the administration in the current firing scandal, its supporters have relied on the established law that allows the president to place loyalists in policymaking positions in the Justice Department and in U.S. attorney's offices nationwide, where they can attend to the department's priorities. But that principle is only half of the legal yin and yang that governs the conduct of U.S. attorneys.

The U.S. attorney, in all 93 federal districts, has been a figure of unique autonomy, whose right to pursue individual cases as she or he sees fit, within the broad framework of Washington's policy directives, has been largely unquestioned for generations and is rooted in the office's local responsibilities.

We will find out this week how much the attorney general will be able to allay the fears raised by the firings. Whether or not he succeeds in saving his job, he will do the federal law enforcement system and the nation a favor if he endorses the traditional division of responsibility, reserving policy for Washington and case-by-case prosecutorial decision-making for the prosecutors. More on the story.