Under fire, not in retreat - Gonzales' plan for attorney reviews would further politicize process

POINTING THE WAY FOR PROSECUTORS
Under fire, not in retreat - Gonzales' plan for attorney reviews would further politicize process
Copyright © 2007, Chicago Tribune
By Andrew Zajac, a national correspondent based in the Tribune's Washington Bureau
Published June 17, 2007

Atty Gen. Alberto Gonzales so far has survived a political crisis over the firing of nine U.S. attorneys, a rare potential vote of no-confidence in the Senate and numerous calls for his resignation.

His response? Gonzales recently proposed tightening the leash on the men and women who prosecute federal crimes across the nation.

Gonzales described what he delicately calls "a more vigorous and a little bit more formal process" for annually evaluating prosecutors. What that means, as he explained it, is hauling in every U.S. attorney for a meeting to hear, among other things, politicians' beefs against the prosecutor.

If that should happen, expect the fair-mindedness and independence Americans still count on from their Justice Department to slip.

In testimony to Congress and comments at the National Press Club, Gonzales framed the meetings as a way of improving communications. But it also looks a lot like a way to remind recalcitrant U.S. attorneys what the home team expects.

On Friday, a spokesman for Gonzales insisted in a written statement that the attorney general has no intention of holding one-on-ones with every U.S. attorney.

"The view of the overwhelming majority of U.S. attorneys is that they do not want a new, formalized review process -- including one that might involve annual one-on-one meetings between each U.S. attorney and the Attorney General or the Deputy Attorney General. We have listened and agree with these views," the spokesman said.

But later Friday a senior Justice Department official said one-on-one meetings are still on the table. "We haven't ruled that out," the official said.

Here's what Gonzales told the House Judiciary Committee last month about what he would do to avoid another uproar in the event he wants to fire more prosecutors:

"At least once a year every United States attorney is going to sit down with either myself or the deputy attorney general, and we're going to have a very candid conversation about issues and problems in their districts," Gonzales said. "If I've heard of complaints from a member of Congress, it gives me an opportunity or the deputy attorney general an opportunity to tell the U.S. attorney what we're hearing."

For an idea of the effect that "what we're hearing" can have, consider the case of former U.S. Atty. David Iglesias of New Mexico. Iglesias was fired after Republican Sen. Pete Domenici -- his one-time sponsor -- complained repeatedly to Gonzales and the White House that Iglesias was reluctant to prosecute vote fraud cases, a sensitive topic in a state George W. Bush lost by 366 votes in 2000.

Domenici also phoned Iglesias last fall and asked him if a certain high-profile Democrat was going to be indicted before the election, an inquiry Iglesias told lawmakers made him feel "leaned on."

Gonzales said he fired Iglesias based on "what I understood to be the consensus recommendation of the senior leadership in the department," but he offered no specifics -- except Domenici's complaints.

What, exactly, would a sit-down with the attorney general have been expected to yield in Iglesias' case?

Whatever Gonzales does to review prosecutors' performances will, by design, be murky, in the interests of maximizing executive power, the attorney general has indicated.

"If you have a more formal process, and a U.S. attorney gets a great evaluation, politically it may be more difficult for the president to make a change simply because he wants to make a change," Gonzales told the National Press Club on May 15. "A president should be able to do that."

Got that?

There's a "process" to tell prosecutors what they're doing wrong. But nothing that would impede dismissing them for any reason.

Of course, there's already an evaluation process run by the Justice Department's executive office for U.S. attorneys. But that only measures how well a prosecutor runs the office, not how loyal he or she is to the administration's agenda.

In truth, everyone in the game understands that U.S. attorneys serve at the pleasure of the president. But until now, presidents have tended to give prosecutors wide berths and have been exceedingly careful about firing them. They have understood that respect for prosecutors' authority hinges on the public's belief that they are independent actors, not marionettes.

Because of that traditional circumspection, U.S. attorneys have been replaced en masse only at the beginning of a new presidential administration. Once appointed and confirmed, they've rarely been fired and usually only for serious ethical or legal lapses. Such lapses were not alleged among the nine prosecutors sent packing last year.

Gonzales could have maintained the tradition of reserve by repudiating the firings as an overreach. Instead he apologized only for bungling them so badly that they've become a public issue.

Gonzales seems intent on making sure they're viewed as a precedent, a handy club for himself and future attorneys general to, depending on your viewpoint, either make sure prosecutors hew to the administration's priorities or make sure they factor political considerations in their deliberations.

But it would be naive to think this newfound flexibility would not also find uses in a Democratic administration. Then how eager would Republicans be to defend it?

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azajac@tribune.com