Republicans and U.S. attorneys — then and now

Republicans now insist that a President has the absolute right to fire U.S. attorneys for any reason, but that is the opposite of what they said in 1993.

Topics: Washington, D.C.,

(updated below – updated again)

The fundamental difference between (a) a new administration replacing all U.S. attorneys (as multiple Presidents have done — including Clinton, Reagan and even Bush 41) and (b) cherry-picking ones for firing in the middle of an administration, has been amply documented. Alberto Gonzales’ own Chief of Staff recognized the unprecedented nature of what they were planning in an email he wrote to the White House.

Nonetheless, Republicans sought in 1993 to depict the routine and standard replacement of U.S. attorneys by the Clinton administration as some sort of grave scandal which threatened prosecutorial independence and was deeply corrupt. Yet now, people like The Wall St. Journal‘s Paul Gigot — one of the most vocal critics of the 1993 U.S. attorneys replacement — insist that the President has the absolute right to fire any U.S. attorneys at any time and for any reason. On the WSJ weekend Fox show, Gigot offered what has become the standard defense of Bush followers:

U.S. attorneys are political appointees. They’re prosecutors appointed by the president, who serve at his pleasure. So presumably the president can dismiss them. What did the administration do wrong in this case?

The idea that Presidents have an unfettered right to fire U.S. attorneys at any time and for any reason is the precise opposite of what Republicans were arguing in 1993 — when Bill Clinton simply replaced all U.S. attorneys at the start of his administration, rather than singling out prosecutors for termination in the middle of his term:

Washington Times, March 26, 1993

Senate and House Republicans yesterday blasted the White House and the Justice Department for giving pink slips to virtually all 93 U.S. attorneys, a move Senate Minority Leader Bob Dole called the “March massacre” . . . .



“Nearly 20 years ago, when Watergate special prosecutor Archibald Cox and Attorney General Eliot Richardson were fired from their posts, the press railed about the so-called ‘Saturday-night massacre,’ ” said Mr. Dole.

Texas Rep. Dick Armey, chairman of the House Republican Conference, and about a dozen freshmen colleagues accused Attorney General Janet Reno of bowing to White House political pressure.

“During her confirmation, Miss Reno assured senators that she would ‘keep politics out of what I do,’ ” Mr. Armey said.

“Less than a month later, she fired all the U.S. attorneys in a very political fashion . . . one that reeks of politics, undermining the public’s confidence in the Department of Justice.”

UPI, March 26, 1993

Senate Republican Leader Robert Dole asked the Senate Judiciary Committee Friday to investigate the mass firing by Attorney General Janet Reno of all 93 U.S. attorneys.

In a letter to Sen. Joseph Biden, D-Del., the chairman, and Sen. Orrin Hatch, R-Utah, the ranking Republican, of the Judiciary Committee said the firings were a “severe blow to the administration of justice in this country.”

He said, “The American people deserve a Justice Department that takes a back seat to politics and one that functions efficiently.”

Associated Press — March 31, 1993

Senate Minority Leader Bob Dole, R-Kan., said President Clinton’s “political – and, yes, impatient – desire to select his own U.S. attorneys will force much of the department’s important work to come to a screeching halt. Justice will suffer.”

Washington Times Editorial, March 28, 1993

All of the U.S. attorneys have important cases and investigations pending. . .

Now, as it happens, we know little of how the decision to ask for the immediate resignations of the U.S. attorneys was made. We do know it was a co-production of the White House and the Justice Department – including, presumably, a murky role for the murky Webster Hubbell, Hillary Rodham Clinton’s former law partner, who occupies an office at the Justice Department in the hitherto unknown and constitutionally dubious capacity as “liaison” to the White House. . . .

Meanwhile, a House committee has taken up the reauthorization of the independent counsel law, which expired in December. Wouldn’t it be delicious if the first use of a revitalized law were to look into the propriety of the Clinton administration’s decision to fire the U.S. attorneys?

Associated Press on March 25, 1993:

President Clinton rejected Republican complaints Thursday about the demand that all presidentially appointed U.S. attorneys resign. He called it less political than replacing them one by one.

“All those people are routinely replaced, and I have not done anything differently,” Clinton said during an Oval Office photo session. “… I think the blanket decision (for resignations) is less political than picking people out one by one.”. .

Senate Minority Leader Bob Dole, R-Kan., issued a statement criticizing Attorney General Janet Reno for a “March Massacre” and comparing her actions to those of President Nixon during Watergate.

Rush Limbaugh, television show, March 25, 1993

LIMBAUGH: (Voiceover) …The New York Times had an editorial, Janet Reno Starts Badly.’ And they go on to talk about all of the–the possible conflicts, or the appearances of impropriety that the–clearly exist here.

Now do you remember something, folks? Remember when Richard Nixon issued a sweeping order for a bunch of people to got–to be gotten rid of? They called that, back then, an obstruction of justice.’ Remember that? Remember Watergate–that Saturday night massacre? Why, he can’t do that. Why, that’s an obstruction of justice.’ And this may end up being the same thing. But what are they calling? Hey, it’s just politics as usual. Hey, don’t bother us about it. It’s our right. We’re the new administration.’

But it is suspicious; very suspicious looking. The appearance of impropriety;’ remember, that’s what a bunch of people said is all we needed to get rid of Ed Meese. Well, my friends, ever since that happened, when he was attorney general for Reagan; the appearance of impropriety–that’s all you need. They always say, the attorney general; that’s a s–that’s a different standard than any other Cabinet post, because that’s the administration of law and order. Number one law enforcement official. All we need,’ they said back then, did the liberal Democrats, was the appearance of impropriety.’ He’s disqualified.

I think we have it here. I think we have a pretty huge appearance of impropriety, and I just want to call your attention to it, show you the double standard which exists. Nobody except me, and–well, what an alliance–the New York Times…

Paul Gigot in March, 1993:

All of which raises the deeper issue of who is really running Justice. Ms. Reno says dismissing the 93 [U.S.] attorneys was a “joint decision” with the White House, which means the White House decided and she announced it. Her letter asked the U.S. attorneys to send their resignation letters “care of John Podesta, assistant to the president and staff secretary, with a copy to me.” Independent justice?

Notably, at the time even Rush Limbaugh, on the March 23, 1993 broadcast of his television show, acknowledged that the full-scale replacement of all U.S. attorneys at the start of an administration is routine:

JANET RENO (US Attorney General): I haven’t asked for Stephens’ resignation. I’ve asked for the resignation of all the US attorneys as part of an orderly transfer to a new administration, so that the new administration can choose its US attorneys which it re–thinks is absolutely integral to the Department of Justice ought–and based on what we think the qualifications for US attorney should be.

LIMBAUGH: Now this happens. She’s right. New administrations just come in and get rid of all the US attorneys.

The beginning of the Clinton administration was really the birth of the all-out right-wing filth and noise machine, and — working with Republican Congressional leaders — it attempted to convert a completely routine decision by the Clinton administration to replace all U.S. attorneys into some sort of explosive corruption scandal. And yet these are the same people, and the same faction, which now insists that there is absolutely nothing wrong with firing U.S. attorneys at any time and that the President has the unfettered right to do so — even in the unprecedented circumstance of singling prosecutors out and replacing them in the middle of the President’s term.

It’s literally the same people who defend President Bush today by saying the exact opposite of what they said in 1993. Yes, that is extremely common for them to do. And yes, there is nothing surprising about it. But it is still worth noting, particularly when the dishonesty is as glaring and inescapable as it is in this case.

UPDATE: It is equally vital to note (as Dan D did in comments) that President Bush asked for the resignation of all U.S. attorneys at the start of his administration, and that (correctly) did not provoke any controversy because that action is routine and proper. From Slate‘s Emily Yoffe on January 11, 2001 — before George Bush was even inaugurated:

The new president can appoint people to about 5,500 federal jobs that automatically become open–those currently holding these positions have already gotten notices telling them to submit their letters of resignation. These positions include the approximately 1,000 people who require Senate confirmation, such as Cabinet secretaries, ambassadors, and U.S. attorneys.

And as The New York Post reported in January, 2001 — concerning the search for who would replace Clinton appointee Mary Jo White as U.S. Attorney for the Southern District of New York:

It is anticipated White and the other U.S. attorneys around the nation will be asked to submit letters of resignation, standard operating procedure when the White House changes hands.

There was no controversy provoked by those requests for resignation because there was nothing improper about it. It’s what all administrations do. There is controversy now because what the Bush administration did is anything but routine and proper.

To suggest, then, that this controversy has arisen by virtue of some “double standard” — prompted by nothing more than routine firings of U.S. attorneys which “Clinton did, too” — is frivolous on its face. When Bush engaged in the routine matter of replacing all U.S. attorneys at the start of his administration, nobody objected.

The scandal derives from the highly unusual effort to cherry-pick prosecutors for firings, in the middle of an administration, for blatantly political purposes (as well as the subsequent false statements, including by top DOJ officials to Congress, about what occurred). It is true that Bush did what Clinton did — back in 2001, when nobody objected. What he has done now is manifestly not what Clinton did (or any President other than, perhaps, Richard Nixon), which is what accounts for the scandal.

UPDATE II: On March 14, 2001, the Bush Justice Department issued a Memorandum making clear just how routine it is to replace all U.S. attorneys at the start of a new administration:

WHITE HOUSE AND JUSTICE DEPARTMENT

BEGIN U.S. ATTORNEY TRANSITION

WASHINGTON, D.C. – Continuing the practice of new administrations, President Bush and the Department of Justice have begun the transition process for most of the 93 United States Attorneys.

Attorney General Ashcroft said, “We are committed to making this an orderly transition to ensure effective, professional law enforcement that reflects the President’s priorities.”

In January of this year, nearly all presidential appointees from the previous administration offered their resignations.

And as ArchPundit documents, the practice of replacing all U.S. attorneys at the start was customary even before the Reagan administration. What the Clinton administration did (that provoked such contrived outrage) was what every administration had been doing and is what the Bush 43 administration itself did back in 2001.

What none of those administrations did — until now — was cherry-pick a list of prosecutors to be fired in the middle of the administration for clearly political purposes and then lie to Congress (and the country) about what happened. Why — when journalists hear the “Clinton-did-it-too” claim or the “there-is-nothing-wrong-with-firing-prosecutors” excuse — are they so incapable of just pointing out these easily discovered facts?

Glenn Greenwald

Follow Glenn Greenwald on Twitter: @ggreenwald.

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