Bell v. Lithwick

The judicial appointment clause allows a judicial appointmnent made under the reinstated ? 546(c)(2) "to serve until the vacancy is filled." This would appear to conflict on the face of it with ? 541(c), which states that "Each United States attorney is subject to removal by the President." (Also with Myers...)

Prez appoints USA, AG appoints interim USA while awaiting Senate confirmation/rejection, Senate sits on hands, 120 days go by, court appoints interim USA, Prez fires interim USA, AG appoints new interim USA, Prez appoints replacement USA, Senate sits on hands....lather, rinse, repeat.

(That's my favorite subject line, by the way, "yes, but")

Simon is quite correct that the exercise of prosecutorial discretion and the channeling of limited resources in particular directions is inherently political. However, that does not entirely negate Attorney General Bell's philosophy, one which I think has been shared by most Attorneys General throughout our history.

There is a difference between being political and being partisan. As Tully is fond of pointing out, once in office, the politician's oath is to the Constitution and laws of the state or nation, not his party. No prosecutor should ever decline to look into a credible allegation because of partisan concerns. If a stranger walks into the office and plays a tape of the head of the state party (the party to which the U.S. Attorney belongs) in the process of accepting a bribe, the U.S. Attorney would violate his oath if he were to fail to pursue the allegation.

That's the easy case, of course. The tougher cases would come in making a determination of how to direct one's investigative resources in the absence of such solid evidence of a particular crime. It is appropriate, proper, and necessary for the DOJ to set priorities, in line with the President's politics, of what kind of cases to pursue. Immigration enforcement, OSHA violations, anti-terrorism cases, white collar crime, fraud, securities violations... all these and more compete for limited resources of time, energy, and money. The DOJ must follow the general direction of the President in such matters.

But the DOJ and U.S. Attorneys should strongly, vociferously resist any involvement by the White House in particular cases. Once individual cases have begun, either at the investigation stage or at the indictment or trial stage, those decisions should be largely divorced from political influence. If a White House staffer calls up and says "why are you prosecuting Joe Blow?", the answer should be "because I have evidence showing he broke the law." That's it... and no White House staffer should be calling up the local U.S. Attorney for something like that to begin with. If the White House has a legitimate concern that some individual is being railroaded, they can call the Attorney General. The Attorney General can then, consistent with his supervisory authority, have his staff review the case to ensure that it is being handled properly.

But that's it. It's not unexpected for someone like Sen. Domenici to make a call like he made, but the proper response is to tell him, "we'll indict when we're ready to, Senator." And if political superiors punished a prosecutor for that, sent a signal to all other prosecutors that they should answer a Senator's questions about particular cases, then that would be wrong. Not criminal, but improper, in my opinion.

But I just don't see that that has happened in this case, based on the evidence so far. You can't insulate a prosecutor from removal just because some Senator once made an unwise phone call.