Thinking About the Fired U.S. Attorneys

Several people have said to me that they are surprised not to see a discussion on LEF of the U.S. Attorney firing scandal.  I can't speak for my co-bloggers, but I had been waiting until more of the facts developed, and also until I had figured out some way to reconcile the two principles that apply to these lawyers:

1.  U.S. Attorneys are political appointees who serve at the will of the President.

2.  The Justice Department and its U.S. Attorneys throughout the country are supposed to be independent.

Obviously one can seek to resolve these competing principles by ranking them.  One who believes that independence is the paramount value that underlies this institution would criticize the administration for dismissing the U.S. Attorneys for something other than a non-political reason.  On the flip side, one who believes in political control over executive branch employees would wonder what all the fuss is about -- the President has the legal authority to fire these employees, and that's the end of the matter.

A better reconciliation would recognize that both principles play a role in the evaluation of presidential decisions.  As an analogy, consider employment law.  In all U.S. states, employment is presumptively at-will, meaning an employee can be fired for any reason at all, or even for no reason.  However, the employers right of at-will employment is qualified by anti-discrimination provisions of federal and state law.  Thus, it is more accurate to say that an employee can be fired for any reason except a prohibited reason.  Prohibited reasons include considerations linked to racial, ethnic, sex, age, disability, etc. status. 

In the context of the employment of U.S. Attorneys, what would be the prohibited reason?  It cannot be "politics" because of principle #1.  The administration is entitled to establish enforcement priorities for U.S. Attorneys based on political considerations.  These may be broad-brush stereotypes, but it wouldn't be surprising if Democratic presidents were more interested in pursuing allegations of corporate criminality, civil rights violations, gun crimes, and environmental crimes than their Republican counterparts.  Writing last week in Slate magazine, Jack Goldsmith and Dahlia Lithwick rightly note that if the president is entitled to set the law-enforcement agenda, no one can complain if the politically appointed head of the DOJ takes steps to advance those priorities. 

But Goldsmith and Lithwick go on to argue that there is a difference between "political priorities" and partisanship, suggesting that the prohibited reason here is trying to gain an advantage for the president's party, apart from advancing a political agenda.  They then say it is difficult to disentangle considerations of legal merit from party affiliation, precisely because of the connection between enforcement priorities and party affiliation -- Republicans are more likely than Democrats to demand that immigration law violations be prosecuted, for example. 

With respect, that's a cop-out.  It's not as though the law has no way of dealing with prextual reasoning as a smokescreen for acting on the basis of a prohibited reason.  In employment discrimination litigation, the fired employee typically tries to show that termination was the result of the employer's unlawful consideration of some prohibited factor.  The employer claims that the prohibited factor was not the reason for the termination, and that the employee was fired for something like poor job performance.  This is how the U.S. Attorney firing debate has been framed, too.  The administration has said that a permitted reason (enforcement priorities) was the basis for the firings; critics say a prohibited reason (pure partisanship) was the explanation.  Now what?

In the employment context, provided the employee's case survives summary judgment (in federal court, evaluated using the McDonnell-Douglas framework), the jury decides whether the employer's stated reason is a pretext.  There are all sorts of ways to prove this, including statistical proof that employees in protected classes aren't hired or promoted at the same rate, but in straightforward cases it comes down to the jury's judgment and common sense.  Looking through a bunch of employment cases shows how this works:  An employee has good evaluations but is fired; the employer claims some legitimate, non-discriminatory reason; the employee presents evidence to show this is bogus; and the jury gets to make the call as long as the employee's evidence is legally sufficient to support the verdict. 

In the U.S. Attorney cases, this is exactly the way the debate is playing out.  David Iglesias of New Mexico was allegedly removed for "performance related reasons," but he received excellent performance evaluations.  The administration specifically cited Iglesias' poor record of pursuing voter fraud allegations, but as an article in today's Washington Post shows, he had previously been praised for his handling of voter fraud cases.  The common-sense explanation of this discrepancy is that the performance-related reasons are a pretext, and the reason reason is pressure by a home-state senator to accelerate the investigation of a political opponent.  (It would not be illegitimate for an administration to favor enforcement of voting fraud statutes -- see principle #1 -- but the past praise of Iglesias for his work in these cases tends to undercut the administration's explanation.) 

Just as in employment cases, there can be more or less direct evidence that the employer's stated reasons are pretextual.  In the U.S. Attorney case, the internal communications turned over by Kyle Sampson have been a treasure trove of evidence of pretext.  For example, Sampson referred to most U.S. Attorneys as "loyal Bushies," implying that failure to do the president's bidding would be grounds for termination (in violation of principle #2). 

The employment analogy may be a basis for distinguishing between the blanket firing of U.S. Attorneys by President Clinton and the seemingly selective targeting by the Bush administration.  In a massive reduction-in-force layoff, it is less likely that discrimination is the motive for the termination of any given employee.