Updated 3 pm Pacific:
Preet Bharara Fired After Refusing to Step Down as U.S. Attorney
On Friday, the Trump administration ordered 46 U.S. attorneys to resign immediately, generating a hailstorm of publicity.
The announcement came on the heels of a Fox news commentator, Sean Hannity, calling for the Trump White House to “purge” Obama appointments:
— Ari Berman (@AriBerman) March 10, 2017
In addition, the mass dismissal follows a memo from Attorney General Sessions to all U.S. attorneys “asking them to make fighting violent crime a priority.” The violent crime rate has been declining steadily since it peaked in 1991. In 2014, the murder and nonnegligent manslaughter rate was at its lowest point since the early 1960s.
Moreover, media reported that incumbents were told to “summarily … clear out their offices.” CNN reported that at the time of the announcement, “many prosecutors had not been formally notified or even told before they were fired.”
Wholesale house cleaning is not out of the ordinary. However, abrupt dismissals are not normal, no matter how many stories you read that says “but Clinton did this” (nope – details below).
However, abruptly and counter-to-precedent is how this administration fired its diplomats, so the move should not be a complete surprise.
Is the Trump demand for resignations unusual?
To answer that question, let’s look backwards, recognizing that the law has changed (rather dramatically) twice.
According to the L.A. Times (2007), in their first two years:
- Reagan replaced 89 U.S. attorneys
- Clinton replaced 89 U.S. attorneys
- Bush replaced 88 U.S. attorneys
Replacing U.S. attorneys at the start of a term of office is the norm.
Forcing abrupt, mass vacancies is not normal. It is also, according to Sen. Dianne Feinstein (CA), ranking Democrat on the Senate Judiciary Committee, contrary to prior White House promises:
In January, I met with Vice President Pence and White House Counsel Donald McGahn and asked specifically whether all U.S. attorneys would be fired at once. Mr. McGahn told me that the transition would be done in an orderly fashion to preserve continuity.
However, official statements suggest that is what Trump has done. Here’s Justice Department spokesperson Sarah Isgur Flores:
Until the new U.S. attorneys are confirmed, the dedicated career prosecutors in our U.S. attorney’s offices will continue the great work of the department in investigating, prosecuting, and deterring the most violent offenders.
What happened in prior administration changes when there was a change in party in the White House?
Sending all U.S. attorneys packing on the same day is unprecedented.
- Trump: Although slightly more than half of the U.S. attorneys had already resigned before March 10, the Trump Administration has nominated no new U.S. attorneys for Senate confirmation, according to the Washington Post.
- Obama: The Obama Administration kept Bush appointees in place until their successors had been appointed and confirmed by the Senate.
- Rod Rosenstein was appointed by Bush and remained on the job for the full eight years of the Obama administration; he is currently (2017) a nominee for deputy attorney general.
- Bush: The big controversy during the Bush Administration was the firing of a handful of U.S. Attorneys during his second term. However, in 2001, the Bush Administration “eased U.S. attorneys out gradually while officials sought replacements.” Deputy Attorney General Paul J. McNulty told the LA Times: “We called each one and had them give us a timeframe. Most were gone by late April.”
- Clinton: On March 23, 1993, Janet Reno sent a notice to all 93 U.S. attorneys asking for resignations; however, incumbents stayed on “until their replacements could be confirmed.” Salon has a long list of Republican objections from 1993. Note that from 1981 to 1993, Attorney General Sessions served as U.S. attorney for the Southern District of Alabama.
- Speaking to the NY Times, Michael D. McKay, a U.S. attorney in Seattle, “recalled at least one colleague who was in the midst of a major investigation and was kept on to finish it.“
- Michael Chertoff, a 1990 Bush appointee, did not leave until 1994.
- Terree A. Bowers, a Republican, became the interim U.S. attorney in 1992 and served through 1993, the first year of Clinton’s term.
- John Smietanka, a Reagan appointee, also kept his position for the first year of Clinton’s term.
- Reagan: At least one Carter appointee, John S. Martin, served during the first years of the Reagan administration. He announced he would be replacing the U.S. attorneys when he announced his attorney general.
— Jake Tapper (@jaketapper) March 11, 2017
The case of the New York attorney
Preet Bharara, the United States attorney in Manhattan, came to this position after several high-profile investigations. One of those led to the resignation of Bush Attorney General Alberto R. Gonzales in 2007, while Bharara was chief counsel for Sen. Charles E. Schumer (D-NY). That was the Bush-era #attorneygate scandal.
According to the NYTimes, the demand for a resignation was a surprise to Bharara:
In November, Mr. Bharara met with then President-elect Donald J. Trump at Trump Tower in Manhattan and told reporters afterward that both Mr. Trump and Jeff Sessions, who is now the attorney general, had asked him about staying on, which the prosecutor said he expected to do.
Also, the timing of the demand for resignation comes on the heels of a request that Bharara investigate the president:
It also came the same week that government watchdogs wrote to Mr. Bharara and urged him to investigate whether Mr. Trump had violated the emoluments clause of the Constitution, which bars federal officials from taking payments from foreign governments.
— Caroline O. (@RVAwonk) March 11, 2017
The Manhattan district is a high-profile one; one of its most prominent cases involved Bernard L. Madoff. From the NewYorker (May 2016):
Under his leadership, the office has charged dozens of Wall Street figures with insider trading, and has upended the politics of New York State, by convicting the leaders of both houses of the state legislature. Last week, Bharara announced charges against a hundred and twenty alleged street-gang members in the Bronx, in what was said to be the largest gang takedown in New York history…
“There’s a tradition of independence in the Southern District,” Rakoff said. “And that has often led to tension with the Justice Department.” Indeed, in law-enforcement circles the Southern District is nicknamed the “sovereign district,” because of its reputation for resisting direction, even from its nominal superiors, in Washington.
A brief history
The Department of Justice operates with 93 U.S. attorneys in 94 districts located throughout the 50 states and U.S. territories. The last time I wrote about U.S. attorneys (not attorneys general) was in late 2006 during the Bush Administration #attorneygate.
U.S. attorneys are responsible for prosecuting federal crimes in the areas that they oversee and report to Department of Justice. For almost 100 years, when there was a vacancy, the district court appointed an interim U.S. attorney. The president would then appoint a replacement, who would be confirmed by the Senate.
Since 1986, however, the authority to appointment replacements in the case of a vacancy has shifted to the U.S. Attorney General. But the clock was ticking: if a nominee was not confirmed within 120 days, the district court would appoint an interim U.S. attorney, according to Sen. Feinstein.
The Patriot Act Reauthorization Bill of 2005 added another twist in the politicization of the Department of Justice. It enabled the President — through the office of the Attorney General — to arrange for U.S. attorneys to resign and then to replace them with political appointees not subject to Senate confirmation.
When introduced as HR 3199 in July 2005, the bill totaled seven pages (web text converted to PDF). When signed by the President in March 2006, it had morphed into Public Law 109-177, a “final print” behemoth at 277 pages.
Because of the changes in PL 109-177, the March 2006 reauthorization of the Patriot Act, U.S. attorneys can be appointed without Senate oversight until the end of the President’s term, instead of for only 120 days. This clause — as well as several other “miscellaneous” items — was added to the bill during the conference process. Behind closed doors.
Unprecedented timing. If, as the official statement implies, all 46 were told to pack up and leave on Friday, outrage is not misplaced.
If the spokesperson misspoke, and all are remaining in place until their successors are confirmed by the Senate, then this is politics-as-usual. Update: Saturday’s firing of Bharara confirms that this was a classic bad-business practice: sack ’em on Friday and change the locks.