Dismissing eight US attorneys
THE RECENT firing of eight US attorneys by the Justice Department (in some cases at the prompting or, at least, the support of the White House) raises some unsettling issues. These concerns are underscored by the department's initial claim that all but one were terminated for performance reasons, and the later revelation that one US attorney was pushed out to make way for a protégé of Karl Rove and the suggestion that others were axed because of partisan unhappiness at their prosecution of public officials.
What's the problem, asks the administration -- after all, US attorneys are appointed by the president, can be removed for any reason, and are considered political appointees.
Yes, US attorneys are appointed by the president (and confirmed by the Senate) for a term, can be asked to resign or can be removed. Yet this has rarely happened and certainly never to this extent in the middle of a president's term.
This is because the department has generally respected the unique role the US attorneys play in their respective districts, as the chief federal law enforcement officer -- serving as a representative of the federal government but able to set priorities for the law enforcement needs of their local communities. Moreover, the US attorneys have always enjoyed a special brand of independence, even with the Department of Justice. This unique blend of independence and accountability provides some tension from time to time, but more often affords checks and balances on the enormous power held by federal prosecutors.
This does not mean that the US attorneys should have complete job security, no matter how they perform. Indeed, it might be thought that greater control by the Department of Justice makes perfect sense, particularly in this post-9/11 era. If US attorneys are not doing a proper and professional job, we should ease them out, or, as was done here, unceremoniously throw them out.
The problem is that it is doubtful that this is the real reason why almost 10 percent of the US attorneys in the country were dismissed. All were appointed by the current administration and had served for many years. Moreover, it appears that those dismissed had received favorable performance reviews.
Rather, while we don't yet know all the facts, it is more likely that politics, not public policy considerations, were part of this decision.
A somewhat more benign possibility is that the dismissals represent an effort by the Department of Justice to rein in top federal prosecutors that don't jump high enough in response to certain directives from Washington, whether to bring more federal death penalty cases, increase immigration cases, or rack up the number of gun prosecutions.
Under either scenario -- and it is incumbent on the department to fully explain and for Congress to determine why these US attorneys were dismissed -- the result does not serve the American people. If it is pure politics, the message is that those who don't follow the party line will be thrown out. If it is a power play by the Department of Justice in Washington, then it signals that the department will enforce its will, even if it undermines the historical roles that US attorneys have played.
In either event, the message to the other and future US attorneys (to say nothing of the many assistants who toil on the front lines) seems to be that independent judgment will no longer be part of the give and take in the department. The administration of justice can only suffer if that is the case.
Donald K. Stern is a partner at Bingham McCutchen LLP in Boston, and a former US attorney in Massachusetts. 
