Fiasco at justice: the case of the fired U.S. attorneys.(Cover story)

AS a firestorm raged over the Justice Department's sacking of eight U.S. attorneys, attorney general Alberto Gonzales acknowledged, "We could have rolled out the decisions more smoothly." No kidding. The department's inept handling of the "mass firing" of a handful of the country's 93 U.S. attorneys has armed partisan critics, prompted demands for Gonzales's resignation, forced a costly reversal on the executive branch's authority, and jeopardized a GOP Senate seat. Damage to the reputations of the fired prosecutors has been unfair. Damage to the reputations of the senior Justice Department officials responsible for this fiasco, on the other hand, is eminently fair.

On December 7 of last year (an unfortunate coincidence that has led Gonzales's critics to claim the day will "live in infamy"), the Justice Department asked seven U.S. attorneys, including those in San Diego, Seattle, Albuquerque, and Las Vegas, to resign. (An eighth U.S. attorney had been asked to resign earlier in the year.) They had been confirmed to four-year terms as presidential appointees, and could be dismissed for good reason or no reason, but not for a bad reason, such as a desire on the administration's part to exert political influence on prosecutorial decisions. No reason was given, and the prosecutors unhappily complied.

According to the Congressional Research Service, in the past 25 years only five U.S. attorneys have left office for questionable conduct or been asked to resign in the midst of a president's term. Not surprisingly, the unprecedented number of recent resignations caught Congress's attention. "Not since the Saturday Night Massacre, when President Nixon forced the firing of the Watergate prosecutor Archibald Cox, have we witnessed anything of this magnitude," thundered Patrick Leahy, the chairman of the Senate Judiciary Committee. He saw a conspiracy afoot in the absence of an Elliott Richardson "to defend the independence of federal prosecutors. Instead, the attorney general, the deputy attorney general, the Executive Office of U.S. Attorneys, and the White House all collaborated in these actions."

President Clinton had relieved all 93 Republican-appointed U.S. attorneys at the outset of his first term, and evidence has surfaced that the Bush White House intended to replace all of its own federal prosecutors at the beginning of its second term. Instead, the White House and the Justice Department settled on firing only a handful of the prosecutors. Since no explanation was given, members of Congress came up with their own. They alleged a "political purge" designed to interfere with public-corruption investigations, and accused the Justice Department of exploiting a little-noticed new provision in the Patriot Act to appoint interim prosecutors who could serve indefinitely without Senate approval.

Until a change in the law last year, the attorney general could appoint an interim U.S. attorney to serve for 120 days, after which a federal judge would choose a prosecutor to serve until the Senate confirmed a permanent replacement. The administration saw that system as an impermissible intrusion by the judiciary on executive authority. Last year's change permits the temporary prosecutor chosen by the attorney general to serve until a permanent replacement is nominated and confirmed.

The controversy escalated in early February, when deputy attorney general Paul McNulty testified that the seven prosecutors ousted on December 7 were asked to resign for "performance-related issues." McNulty said that the eighth U.S. attorney---in Little Rock---had been asked to resign so that his position could be filled by Timothy Griffin, a former Army JAG prosecutor and Iraq War veteran who worked at the RNC in 2000 and later for Karl Rove at the White House. (Unfortunately, Griffin has now withdrawn his name from consideration, having realized that his nomination would cause a confirmation fight that the administration has little stomach for.)

The maligned prosecutors reacted with predictable anger to McNulty's accusation of professional shortcomings. They had largely received ...