By Andrew C. McCarthy • National Review
In March 1993, Janet Reno began her tenure as President Bill Clinton’s attorney general by summarily firing United States attorneys for 93 of the 94 federal districts (one, Michael Chertoff, was retained in New Jersey, at the request of Democratic Senator Bill Bradley). That is more than twice as many as Trump attorney general Jeff Sessions fired on Friday.
Indeed, there were only 46 Obama-appointed U.S. attorneys left for Sessions to relieve because Obama appointees fully understood that this is the way things work. Many of them had already moved on, in the expectation that the president elected in November would replace them — an expectation that became a virtual certainty once it was clear that this change of administrations would be a change of parties, and visions.
It is frequently observed that, to be legitimate, law enforcement must operate independently of politics. It is an oversimplification, coupled with a misunderstanding of politics in its non-pejorative sense.
Of course the conduct of investigations, prosecutions, and their consequent judicial proceedings must be immune from partisanship. It would be intolerable for people to be targeted for, or insulated from, criminal law enforcement based on their political connections. Law enforcement, however, is about more than handling individual cases. It is about making overarching policy choices.
Resources are finite. Administrations must choose how many assets to dedicate to counterterrorism, immigration enforcement, health-care fraud, organized crime, and so on. Should the feds focus on the importation of illegal narcotics and their distribution by interstate criminal syndicates? Or should prosecutors and agents team up with state agencies to tackle street-level trafficking? Are the civil-rights laws an enforcement measure to protect fundamental liberties? Or are they a social-justice tool for transforming nationwide policing practices?
These policy choices are the stuff of politics. They often weigh heavily in presidential campaigns and elections. Law-and-order issues intimately affect people’s lives. When presidents make promises about them, they must expect to be held accountable.
U.S. attorneys are the instruments through which the president exercises his policy discretion. That is why they are political appointees. They do not have power of their own. Under our Constitution, all executive power is reposed in the president alone. Every officer of the executive branch is thus a delegate. The U.S. attorney exercises the president’s power and can be removed at the president’s will.
It is only natural, then, that a president will want his power wielded by his own appointees, whom he trusts to carry out his policy program. And it thus follows that, when there is a transition between administrations that see the world, and the Justice Department’s role in it, as differently as the Obama and Trump administrations, there will be sweeping turnover, carried out rapidly.
That is as it should be.
Yes, it was not uncommon in the pre-Clinton era that new presidents permitted sitting U.S. attorneys to continue through the transition of administrations to the completion of their four-year terms. But that is a bygone time, when the federal government was not nearly as expansive, the role of federal law enforcement was far more modest, and litigation did not have as imposing a role in settling society’s disputes.
Nowadays, there is unprecedented policy consequence in the execution of federal law enforcement, as much in the civil as in the criminal arena. It matters more than ever that the president has his appointees, who are chosen because they support his policy preferences. If Donald Trump has determined that the immigration laws must be enforced, and has won an election with that as a signature issue, why would he retain the U.S. attorneys Barack Obama appointed — prosecutors plainly sympathetic to Obama’s non-enforcement policies?
Why would he keep in place Obama’s Justice Department appointees when the first notable action taken by the one of highest rank, acting attorney general Sally Yates, was the insubordinate refusal to defend a lawfully issued executive order endorsed by Justice’s Office of Legal Counsel?
Unavoidably, the partisan rancor of Washington factors in, too. Sure, we oldtime federal prosecutors may yearn for the time when the party-affiliation of the U.S. attorney seemed irrelevant, when there was a reverence for the mission and traditions of the Justice Department that transcended partisanship. But when Clinton purged his 93 in ’93, that altered expectations forever. Until then, few Americans even thought about U.S. attorneys unless they were enmeshed in some Justice Department matter. But ever since, each party reciprocally demands its patronage — their guys out, our guys in.
The Left is better at this game. Thus, when President George W. Bush fired eight U.S. attorneys — his own appointees — well into his second term, Democrats managed to turn it into a scandal. But this was mainly due to the ham-fisted way Attorney General Alberto Gonzales and the Bush White House handled the issue, trying to suggest that the terminations were related to poor performance rather than politics as usual (i.e., an opportunity to “credential” more Republicans lawyers for future offices). As night follows day, this induced the fired U.S. attorneys to defend themselves; that gave Democrats the opening to claim that the administration had misled Congress and suggest that the terminations were sinister — somehow related to the obstruction of (or failure to bring) worthy investigations.
It cost Gonzales his job, but as far as constitutional principle is concerned, it was much ado about nothing. If anything, the lesson it teaches is: If a president is going to remove U.S. attorneys, best to do it at the beginning of an administration, when it is manifestly a matter of wholesale transition, not decisions related to individual cases.
Once Clinton set that precedent, there was nary a peep when Bush had replaced nearly all of Clinton’s appointees by the end of his first year. After taking office as attorney general in 2009, Eric Holder explained that the newly elected Barack Obama would soon announce “our first batch of U.S. attorneys” to supplant Bush incumbents. Elaborating, he matter-of-factly said, “Elections matter. It is our intention to have the U.S. attorneys that are selected by President Obama in place as quickly as [we] can.” The Bush appointees were replaced — not because they did a bad job but because that is what presidents do. They have their own enforcement priorities, and they have every right — subject to the Senate’s advice and consent — to have their own U.S. attorneys executing those priorities.
That is exactly what President Trump has done. It is also exactly what he should have done.