Former U.S. Atty. Says Independence Threatened 

Attorney General Alberto Gonzales resisted new calls for his resignation Wednesday over the growing scandal about the dismissal of eight U.S. attorneys. To understand why these firings have become such a politically charged issue, NEWSWEEK’s Julie Scelfo spoke with Mary Jo White, former U.S. Attorney for the Southern District of New York, who was appointed by President Clinton and served for nearly nine years, even staying on for 10 months after President Bush took office and ordered three other New York federal prosecutors to step down. White, who earned national prominence for the successful prosecutions of numerous terrorism and white-collar cases, is now a partner at Debevoise & Plimpton in New York. [Editor’s note: Scelfo’s spouse worked for White from 1998-2002.] Excerpts:

NEWSWEEK: What are U.S. attorneys and what do they do?
Mary Jo White: There are 93 U.S. attorneys that serve [geographical] judicial districts throughout the country. All are appointed by the president and subject to confirmation by the Senate and each one is chief federal law-enforcement officer of their respective districts. They’re charged with enforcing the federal laws, criminal and civil, in their district.

Does each prosecutor choose which cases to pursue?
U.S. attorneys have, and I believe rightly so, a great deal of discretion in terms of which cases to pursue and which not to pursue. They are subject to the general oversight of the Department of Justice. But within that structure, each U.S. attorney has a tremendous amount of discretion. That doesn’t mean they can decide not to enforce a law because they don’t like it. But basically they’re the chief federal law-enforcement officer for each district.

How long do U.S. attorneys usually serve?
Typically, the U.S. attorneys are appointed [by the president] for one four-year term and, assuming the political party doesn’t change, they are rolled over to serve out the remainder of the president’s term [if he is re-elected]. Obviously, some leave for their own personal reasons at some point in time. But essentially, even though they serve at the pleasure of the president, they typically, if they wish to, serve out the full term of the president.

President Bush’s defenders have been asking why there’s such a fuss when even President Clinton removed all 93 U.S. attorneys in the early days of his administration.
Essentially, all U.S. attorneys, as political appointees, are expected to be replaced when the party changes. Although I think President Clinton made those changes too abruptly for an orderly transition, replacing political appointees is part of the normal political process when the party of the president changes. It is an entirely different matter when replacement of the U.S. attorneys are made during the same administration.

So it’s atypical to be replaced in the middle of a president’s term?
It’s quite atypical, absent some misconduct or other quite significant cause. What’s happened here, in my experience and to my knowledge, is quite unprecedented. And, if it turns out to be the case that some of the U.S. attorneys may have been removed for reasons of not bringing, or not bringing fast enough, politically charged cases, or they weren’t “loyal” to the president, then it becomes very, very disturbing. They should not, in my view, be removed lightly, and never for a political reason. Again I caution, though, that facts are coming out every day.

Recently released documents show a great deal of correspondence between the White House Counsel's office and Kyle Sampson, the Attorney General's chief of staff who resigned on Tuesday. Did you find it surprising the White House was so involved in the firings?
The whole series of events has been, in my judgment, highly unusual and completely unprecedented. Having said that, every U.S. attorney is subject to removal by the president. So at some point you would expect some White House involvement if indeed you were removing a presidentially appointed U.S. attorney.

David Iglesias, the former U.S. attorney in New Mexico, says he received pressure from two members of Congress to speed up investigations of Democrats just before last year’s election. In your experience, is this a common occurrence? 
I was a U.S. attorney for almost nine years and that never happened. Never happened.

What would you have done if it did?
It would depend on what the call was. To the extent there was inquiry on anything that was not public information, I would have responded that it’s not appropriate to answer those inquiries. And depending on the tenor of call, I would perhaps have reported it to the Department of Justice Office of Legislative Affairs. It would not be appropriate to engage in any discussion about an ongoing investigation with anyone, including a member of Congress.

Is there any official protocol to prevent politicians from trying to influence prosecutors?
Essentially, the protocol is if you get a call from someone in Congress or the White House, you refer them to the Department of Justice, the Office of Legislative Affairs, and they are actually a buffer between the U.S. attorneys and politicians. So, basically, [the] protocol is you’re not to call the U.S. attorney, and that is known to members of Congress and the White House. If you have a question, you call the Office of Legislative Affairs. There can be, obviously, legitimate inquiries about certain things. But you need that filter or buffer so you don’t get that kind of outside pressures on U.S. attorneys. We need to be sure that tradition is maintained.

What's wrong with politicians calling to ask about investigations?
U.S. attorneys are chief law-enforcement officers in their district. Even though they’re political appointees, once they are appointed, they are expected to be totally apolitical in how they carry out their jobs, independent of the political process. They handle their cases, decide what cases to bring without fear or favor. Any attempt to put a political elbow on that scale is contrary to that tradition and contrary to the kind of criminal justice system we want to have.

Do you think this is raising concern among current U.S. attorneys that under the current administration, they are subject to more outside influences?
There’s certainly been a suggestion that some of that may have occurred in at least a few of the cases with a few of these U.S. attorneys. [But since] it’s been subject to the light of day … hopefully that exposure will have a deterrent effect on anybody else thinking about making such calls. The concern I had initially with respect to the decision to force the resignation of these U.S. attorneys, is that other U.S. attorneys would then think, “Well gee, I better please the Department of Justice and not raise my hand when I think some policy doesn’t make sense so I don’t end up on the same chopping block as my colleagues did.” Now, I think the exposure of the facts [in this case] is likely to be more of a deterrent to the Department of Justice than it is on the U.S. attorneys.

What do you think will be the impact of these firings on law enforcement?
There is a price to be paid in every U.S. attorney’s office when you have a change in leadership. That’s going to happen when a new president begins and the more orderly it can be, the better. But to gratuitously or with insufficient cause remove a US Attorney during an administration means a tremendous disruption in that office. You lose traction on cases, you lose a strong leader that you need to have to deal with particularly sensitive cases that may be subject to criticism.

Do you feel like the attorney general’s acknowledgement that “mistakes were made” is an adequate response?
I think the fundamental mistake at least in the vast majority of cases here is that those U.S. attorneys should not have been removed, at all. We need to let all the facts come out here before making the ultimate judgment on what the remedy should be.

On Wednesday, GOP Sen. John Sununu joined calls from Democrats for Gonzales to resign. Should he?
I have no comment. As I mentioned before, facts are still unfolding.

How do you think this will impact the Department of Justice?
Hopefully, at the end of the day it will be exhibit A for never doing this again.