By Mark David Blum, Esq.
Much hay is being made of the firing of eight United States Attorneys “at the pleasure of the President.” A constitutional crisis is developing as Congress and the Executive Branch crash head on into each other’s political agenda. The issue being ignored and the ultimate damage done to the nation by these firings is very simple: Is our local U.S. Attorney on the “list” … and if not, why not?
We live in a nation where we assume and operate on the belief that the justice system is being honorable and prosecutions are legitimate in both means and ends. The federal criminal justice system, itself a monster never considered by our Founders, has usurped nearly all state criminal laws and jurisdiction and has clogged up and closed every door of access to the Federal Courts for real federal litigants. So much resource and money is invested in what are otherwise routine criminal matters, that substantive claims that require federal intervention never get heard; or at least not for years and years.
It is indeed true that U.S. Attorneys serve at the pleasure of the President. Each incoming administration replaces all these positions with those of their own party. Once that act occurs, however, U.S. Attorneys should be out of the political loop. Their tenure in office should be based on performance; not on advancing a party’s agenda. Removing a U.S. Attorney likewise is at the pleasure of the President but there should be a reason therefor … and even no reason needs to be given … so long as the basis for the removal is not an illegal reason. Defaming and destroying the reputations of those removed is shameful beyond words and if not illegal; it should be. This is especially so when the removal was for political retaliation.
Presently, the White House is under siege. Staff attorneys are invoking their Fifth Amendment rights and refusing to testify before Congress. Harriet Myers and Alberto Gonzalez have gone mum. Press Secretary Snow says Congress has no right to inquire or role to play. No record is going to be made and nobody is required to tell the truth. The undisputed evidence is growing stronger each day that the eight prosecutors removed from office so suffered because they did not advance political prosecutions to the satisfaction of their Republican masters. Or, as in the case of Carol Lam, removed because of prosecutions of Republican party favorites like Randy ‘Duke’ Cunningham.
Beyond shameful, the removal of these prosecutors has called into question the integrity of the entire Federal prosecutorial system. My concerns are not focused on the lies and cover-ups as to why the eight were removed. Rather, my concerns surround those prosecutors who are still in office.
Locally, our U.S. Attorney for the Northern District of New York, Glen Suddaby, remains in office despite the Bush putsch. As an attorney and officer of that same Court, I question the merits of the acts and prosecutions of a U.S. Attorney who remains in good standing with the current administration. Because of revelations, we know that those who investigate and prosecute independent of White House control are fired. The fact that Mr. Suddaby remains in place gives fodder to defense attorneys to question every local federal prosecution.
The damage caused by ‘Prosecutor-gate’ is apparent. What Judge or lawyer can now trust an indictment as being based on merit and not on advancing a political agenda? Will Federal Judges allow criminal defendants to raise the issue of selective prosecution and political persecution as a viable defense in a criminal action? Just what is it that Mr. Suddaby does in his day to day operations that keeps Washington quiet and assures Suddaby his pension?
I am sure Glen is an honorable lawyer and prosecutor. There is nothing known to me to even hint that his job performance is politically motivated. Unfortunately, because of how the White House has responded with eight others, there is now a burning question as to the integrity of prosecutors still in office. That is the true damage of this entire fiasco; the lack of public confidence in the judicial system. Therein lies the greatest threat to our nation.
While his loyalty to party and President is to be respected, Mr. Suddaby should take a stand in defense of the United States as a whole. He has to find a way to make it clear to those he serves that decisions made in his office are not political, but legal, unbiased, and based on justice. Targets of criminal investigations, the types of investigations, and the nature of prosecutions are now all suspect and the burden has shifted to the U.S. Attorneys to prove their independence. One would hope that Suddaby would stand with his colleagues and defend the justice system.
The Bush Administration will be out in 664 days. Mr. Suddaby will probably be removed shortly thereafter. Until then, it is incumbent upon him to stand up for a system that is greater than those in office. His silence, like that from other prosecutors in the Justice Department only further enhances the presumption that something other than justice is guiding the decision making process.
Frankly, we should all be afraid; very afraid. The power and resources of a federal prosecutor know no bounds and anybody targeted is going to suffer. I fear that the system itself has suffered irreparable harm and without a trusted justice system, we are left only with the gun as a means to settle disputes. After all, lawyers and courts exist for the sole purpose of resolving disputes amongst human beings. When the system is corrupted or seen as corrupted, then whom among us is going to trust our lives and future in its grasp?
To the eighty five remaining U.S. Attorneys, I have a simple question: Are you on the list? If not, then why not? Inquiring minds want to know.
