The DOJ Shuffle
In response to a request for my thoughts on "Attorneygate":
Last December, the Bush administration fired 8 United States Attorneys (USAs), at least 6 of whom had recently received very high job performance ratings. Four of the dismissed USAs had investigated or prosecuted Republicans, 2 had failed to prosecute Democrats in some questionable cases, and 1 had not prosecuted obscenity cases or sought the death penalty in several cases. Outrageous, right? Well . . .
Observation #1: These firings very likely did not violate the law. USAs "serve at the pleasure of the president." The president can ask for the resignation of any executive branch officer at any time, and a 2006 amendment to the USA PATRIOT Act provides that the Attorney General can appoint replacement USAs to serve indefinitely (i.e. until the president submits a replacement candidate to the Senate).
You could claim that the executive is failing his constitutional duty to "take care that the laws be faithfully executed," but this clause is as good as dead as far as judicial enforcement goes.
Observation #2: It looks like the administration used a lot of underhanded tactics. When you fire USAs who prosecute Republicans and fail to prosecute Democrats, it sends a message to future USAs who would like to retain their jobs. Moreover, the administration tried to keep the news hushed, and when the news broke, it claimed that the USAs were fired for performance-based reasons. Sound fishy? Of course, but let's not pretend that the Democrats wouldn't use similar tactics if they had the power to do so.
Observation #3: We lack the resources to prosecute every crime, so we have to make choices about which crimes we will prosecute. Do you want to make those choices randomly? Me neither. I am happy that the NYPD does not prosecute me (and the other 8 million New Yorkers) every time I (we) jaywalk. It is a fairly insignificant crime that harms very few people. Similarly, I was happy that violations of the anti-sodomy law in Bowers v. Hardwick and violations of the 1925 Arkansas law prohibiting the teaching of evolution in public schools (declared unconstitutional in Epperson v. Arkansas) were seldom prosecuted. And I was happy that in the town where I grew up, prosecution of laws prohibiting underage drinking was spotty at best. Vigorous prosecution of these laws in their respective jurisdictions lacked popular support. It doesn't seem at all problematic to decide how vigorously to enforce certain laws based on available resources and policy considerations.
Moreover, if conclusive evidence surfaced indicating that certain USAs were intentionally prosecuting Democrats but not Republicans, the Fourteenth Amendment's Equal Protection Clause (EPC) would likely exculpate the prosecuted Democrats.
Hence, in the abstract, it doesn't seem that what the administration did is all that objectionable.
Observation #4: Those concessions aside, there is an enormous evidentiary problem in bringing an equal protection challenge to disparate prosecutions. It's really hard to prove that a USA is prosecuting more Democrats than Republicans. There are sample-size problems (very few USAs serve for more than 8 years), and there are many differences among cases, making it easy for a USA to claim that she prosecuted one individual for a permissible reason (i.e. not political affiliation) that wasn't present in another case.
Even if you could fix this evidentiary problem, you still have to deal with Washington v. Davis, which says that the Equal Protection Clause doesn't invalidate government actions solely because they have a disparate impact. The EPC requires a showing of intentional discrimination. In other words, even if a Democrat accused of jaywalking could demonstrate that the USA involved had prosecuted 100 Democrats for jaywalking and 0 Republicans, the Equal Protection Clause wouldn't automatically invalidate the prosecution of the Democrat (I say "automatically" because it's possible that a jury would infer intentional discrimination from this extremely disparate impact.).
So what's the solution?
I think the political mechanism worked pretty well in response to this incident. Once the facts surfaced (and they are still surfacing), there was considerable public outrage at the tactics the administration used.
The problem with exclusive reliance on the democratic process is that a more adept administration will avoid firing 8 USAs at once. Perhaps if the firings were spread out a bit more, public outrage would have been less intense.
I like Rick Pildes's proposal to give subpoena power to the minority power in Congress. That way, if a USA is fired for fishy-sounding reasons, some part of Congress will have both the power and the incentive to investigate.
On a side note, I think far too much legal scholarship focuses on the legislature and the judiciary. Sure, the things that Congress and the courts say and do are important, but I think in terms of practical effect, they are a drop in the bucket compared to what prosecutors and administrative agencies do.
Last December, the Bush administration fired 8 United States Attorneys (USAs), at least 6 of whom had recently received very high job performance ratings. Four of the dismissed USAs had investigated or prosecuted Republicans, 2 had failed to prosecute Democrats in some questionable cases, and 1 had not prosecuted obscenity cases or sought the death penalty in several cases. Outrageous, right? Well . . .
Observation #1: These firings very likely did not violate the law. USAs "serve at the pleasure of the president." The president can ask for the resignation of any executive branch officer at any time, and a 2006 amendment to the USA PATRIOT Act provides that the Attorney General can appoint replacement USAs to serve indefinitely (i.e. until the president submits a replacement candidate to the Senate).
You could claim that the executive is failing his constitutional duty to "take care that the laws be faithfully executed," but this clause is as good as dead as far as judicial enforcement goes.
Observation #2: It looks like the administration used a lot of underhanded tactics. When you fire USAs who prosecute Republicans and fail to prosecute Democrats, it sends a message to future USAs who would like to retain their jobs. Moreover, the administration tried to keep the news hushed, and when the news broke, it claimed that the USAs were fired for performance-based reasons. Sound fishy? Of course, but let's not pretend that the Democrats wouldn't use similar tactics if they had the power to do so.
Observation #3: We lack the resources to prosecute every crime, so we have to make choices about which crimes we will prosecute. Do you want to make those choices randomly? Me neither. I am happy that the NYPD does not prosecute me (and the other 8 million New Yorkers) every time I (we) jaywalk. It is a fairly insignificant crime that harms very few people. Similarly, I was happy that violations of the anti-sodomy law in Bowers v. Hardwick and violations of the 1925 Arkansas law prohibiting the teaching of evolution in public schools (declared unconstitutional in Epperson v. Arkansas) were seldom prosecuted. And I was happy that in the town where I grew up, prosecution of laws prohibiting underage drinking was spotty at best. Vigorous prosecution of these laws in their respective jurisdictions lacked popular support. It doesn't seem at all problematic to decide how vigorously to enforce certain laws based on available resources and policy considerations.
Moreover, if conclusive evidence surfaced indicating that certain USAs were intentionally prosecuting Democrats but not Republicans, the Fourteenth Amendment's Equal Protection Clause (EPC) would likely exculpate the prosecuted Democrats.
Hence, in the abstract, it doesn't seem that what the administration did is all that objectionable.
Observation #4: Those concessions aside, there is an enormous evidentiary problem in bringing an equal protection challenge to disparate prosecutions. It's really hard to prove that a USA is prosecuting more Democrats than Republicans. There are sample-size problems (very few USAs serve for more than 8 years), and there are many differences among cases, making it easy for a USA to claim that she prosecuted one individual for a permissible reason (i.e. not political affiliation) that wasn't present in another case.
Even if you could fix this evidentiary problem, you still have to deal with Washington v. Davis, which says that the Equal Protection Clause doesn't invalidate government actions solely because they have a disparate impact. The EPC requires a showing of intentional discrimination. In other words, even if a Democrat accused of jaywalking could demonstrate that the USA involved had prosecuted 100 Democrats for jaywalking and 0 Republicans, the Equal Protection Clause wouldn't automatically invalidate the prosecution of the Democrat (I say "automatically" because it's possible that a jury would infer intentional discrimination from this extremely disparate impact.).
So what's the solution?
I think the political mechanism worked pretty well in response to this incident. Once the facts surfaced (and they are still surfacing), there was considerable public outrage at the tactics the administration used.
The problem with exclusive reliance on the democratic process is that a more adept administration will avoid firing 8 USAs at once. Perhaps if the firings were spread out a bit more, public outrage would have been less intense.
I like Rick Pildes's proposal to give subpoena power to the minority power in Congress. That way, if a USA is fired for fishy-sounding reasons, some part of Congress will have both the power and the incentive to investigate.
On a side note, I think far too much legal scholarship focuses on the legislature and the judiciary. Sure, the things that Congress and the courts say and do are important, but I think in terms of practical effect, they are a drop in the bucket compared to what prosecutors and administrative agencies do.
posted by Garrett at 10:28 PM
1 Comments:
"Observation #3: We lack the resources to prosecute every crime, so we have to make choices about which crimes we will prosecute. Do you want to make those choices randomly? Me neither."
I don't think this is as straightforward as you claim. There's a difference between choosing which crimes to prosecute, and how you prosecute each crime. But nonrandom, inconsistent enforcement of crime invites racial profiling, unethical police conduct and resentment towards law enforcement.
Not prosecuting jaywalking or underage drinking is fine, but it's hard to think of legitimate reasons for keeping laws we don't want to enforce on the books. Presumably they'd only remain for use against specific people or due to a failure of the political system, and neither of those are legitimate reasons.
The bigger problem presented in your post is choosing how you prosecute crime in general. If we decide against prosecuting petty crimes, that's not a significant problem. But if we're going to make nonrandom decisions about which crimes to prosecute, that's going to naturally lead to a larger political intrusion into law enforcement than desired.
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