Rethinking the Identity and Role of United States Attorneys

Abstract

This article considers the proper role of politics in federal prosecutions, and how that bears on the position of the U.S. Attorney. First, the article sets forth an account of the problems disclosed by investigations into the Bush Justice Department, including the controversial firing of nine U.S. Attorneys and claims that particular prosecutions were politically motivated. It then explores the historical development of the role of the U.S. Attorneys, their relationship to the Attorney General and the Department of Justice, and their role in the contemporary federal criminal justice system.

With that background, the article considers the question whether there should be a fundamental change in the role and character of the position of U.S. Attorney. It concludes that a career or civil service role for U.S. Attorneys is neither politically feasible nor desirable. Rather, the presidential appointment of U.S. Attorneys, with approval by the Senate, provides a desirable counterweight to Main Justice, both by creating separate spheres of political influence and by allowing for decentralization of federal power. It argues that there is real value in a structure that delegates federal prosecutorial power to local districts, reinforcing federalism and allowing federal law to be adapted to different conditions.

Although the advantages of political appointments for the U.S. Attorneys outweigh the disadvantages, there are still reasons for concern. The article evaluates four mechanisms that have been proposed to moderate the effect of partisan politics at the appointment stage and the effect of improper partisan pressure that may be exerted on U.S. Attorneys by the executive branch, Congress or local political leaders. Three of the mechanisms are identified as promising alternatives to an impracticable and undesirable reconfiguration of the Department.