Jurisprudence

How to Stop Presidents From Corrupting U.S. Attorneys

The current process to select top federal prosecutors rewards political cronies and donors.

Berman stands in the shadows by a curtain.
Geoffrey Berman, U.S. attorney for the Southern District of New York, was unceremoniously fired after he refused to resign. Drew Angerer/Getty Images

Attorney General William Barr informed the top federal prosecutor in Manhattan, Geoffrey S. Berman, on Saturday that the president had fired him after he resisted Barr’s attempt to oust him the night before. At first, Berman insisted that he could not be let go by the attorney general and that he would not depart until a successor was confirmed by the Senate—until then “our investigations will move forward without delay or interruption.”

President Donald Trump added to the chaos when he told reporters that Berman’s fate was “all up to the attorney general. … I wasn’t involved.”

The Trump administration had chosen Berman, a former prosecutor and Republican donor, to replace Preet Bharara, who was fired in 2017, along with 45 other holdovers from the Obama administration, by then–Attorney General Jeff Sessions (Bharara refused to resign). Replacing U.S. attorneys at the start of a new administration is common practice. Doing so during a president’s term of office, however, is not, so the dismissal of Geoffrey Berman bears closer examination.

Berman’s firing has highlighted the Trump administration’s eagerness to once again subjugate the apparatus of American justice to the president’s personal and political agenda. It is the latest post-impeachment purge of officials deemed insufficiently loyal to the president.

What did he do wrong? Under Berman’s leadership, the Southern District of New York, long famous for jealously guarding its independence, successfully prosecuted Michael Cohen, the president’s former personal lawyer. It is currently investigating Rudolph Giuliani, Trump’s current personal lawyer.*

The only explanation Barr has provided for Berman’s dismissal is that he “wanted the opportunity to choose a distinguished New York lawyer, Jay Clayton, to nominate as United States Attorney.”

Barr’s interference with federal prosecutors has raised new alarms. Earlier this year, Barr maneuvered then–U.S. Attorney Jessie Liu out of her position at the helm of the D.C. U.S. Attorney’s office and replaced her with Timothy Shea, who abruptly changed the office’s position on the prosecutions of Trump allies Roger Stone and Michael Flynn.

Berman’s dismissal is another reminder that the Constitution alone does not guarantee that justice will be blind or that politics will be kept out of prosecutorial decision-making. To prevent similar abuses and threats to the rule of law in the future, the U.S. will need to make significant structural and institutional changes.

Those changes should include taking U.S. attorneys out of the political processes and making them career civil servants, with fixed terms, not subject to removal at the whim of the president.

Currently, U.S. attorneys are typically appointed by the president following the recommendation of senators from the president’s party who represent the state to which they will be appointed. This process has been used to reward political cronies or prominent donors, like Berman, to the president’s party.

Congress should take their appointment and removal out of the hands of the president. U.S. attorneys should be nonpartisan civil servants selected on the basis of merit by the Department of Justice following merit standards set by the federal government’s Office of Personnel Management and subject to the full range of civil service protections, including a full range of procedural protections before someone can be terminated.

This process would be similar to the one now used for appointing career foreign service officers to diplomatic posts. While presidents like Trump can, of course, take away plum assignments and make life very uncomfortable for even career officials, they cannot fire them on a whim.

A merit selection process would focus on legal experience, qualifications, and demonstrated good judgment—unlike the current system, which rewards those with political connections and ideological affinity with the president. A more professionalized and independent group of U.S. attorneys offers a safeguard against undue political influence and allows them to make decisions based on the rule of law.

This would hardly be a radical change. When the office of the U.S. attorney was created by the Judiciary Act of 1789, it was clear that Congress did not want these attorneys to be partisan loyalists of the president. They were to be local notables with a reputation for putting judgment and integrity above politics. The act gave the president the power to appoint these attorneys to represent the federal government, subject to the advice and consent of the Senate. But the executive branch’s power over these offices was always meant to be limited.

Thus, when Edmund Randolph, a close friend and political ally of President George Washington who served as the first attorney general of the United States, asked Congress to give him the power to supervise the work of U.S. attorneys, it refused, fearing that doing so would enhance the power of the executive branch.* As Duke law professor Sara Beale points out, U.S. attorneys were not even required to inform the attorney general of the work they did on behalf of the federal government.*

In the early period of the republic, U.S. attorneys did not exercise much authority. Before the Civil War, they prosecuted only crimes mentioned in the Constitution, like piracy, counterfeiting, and treason.

Their role began to change in the middle of the 19th century, when Congress created the Department of Justice and gave the attorney general supervisory power over them. This change has allowed attorneys general who, like Barr, see themselves as close political allies of the president to closely monitor their work and give them direction in high-profile cases.

Justice Department control over U.S. attorneys increased over the course of the 20th century. In 1953, the department created the Executive Office for U.S. Attorneys and established a formal set of protocols governing their work.* These protocols lay out the things prosecutors have to do in organizing and running their offices, but do not protect political appointees from interference of the kind practiced by Barr and Trump.

The authority of these attorneys grew with the expansion of the federal criminal code. Unlike in the nation’s early years, today they are responsible for enforcing more than 4,000 federal crimes.

And because there are few rules regulating the decision to prosecute any of those crimes, U.S. attorneys have enormous power over the fate of both ordinary citizens and government officials whose conduct allegedly violates a federal statute. Whitney North Seymour Jr., himself a legendary U.S. attorney, once called such power “awesome” and said that it made each U.S. attorney a “king is in his own domain.”

As the power of U.S. attorneys has increased, so has the temptation for others to use that power for their own political purposes. From time to time, presidents have tried to influence the decisions of U.S. attorneys. Scandal ensued.

One of the most important of those controversies occurred in December 2006, when President George W. Bush ordered the midterm dismissal of seven U.S. attorneys. Investigations subsequently revealed that they were targeted because they were investigating Republican politicians or were failing to initiate investigations of Democrats.

What Bush did was a clear departure from the norm that presidents should rarely remove a U.S. attorney during their term. His action caused a public furor and led to investigations by both Congress and the DOJ inspector general, which ultimately found no criminal wrongdoing.

But, as the botched firing of Berman shows, such norms mean little to the Trump administration, which has taken a series of unprecedented actions to use the Justice Department to reward friends and punish enemies.

It is now time to recall the wisdom of those who recognized the desirability of insulating U.S. attorneys from politics more than 200 years ago. In even the most partisan and self-serving administrations, U.S. attorneys should be able to serve as what law professor Daniel Richman rightly called “a critical counterweight to Washington politics.”

Correction, June 22, 2020: This article originally misspelled Edmund Randolph’s first name, Rudolph Giuliani’s last name, and Sara Beale’s first name and misidentified the Executive Office for U.S. Attorneys as the Executive Office of U.S. Attorneys.