Trump firing U.S. Attorneys after retaining them is NOT normal

I’ve seen some expert commentators argue that it is traditional for new presidents to replace U.S. Attorneys. That’s true. But it is entirely untraditional and abnormal to fire U.S. Attorneys after retaining them and allowing them to continue in their offices.

Admittedly, it’s a bit of a gray area because Trump is so early in his term. Nevertheless, every other president made decisions about which U.S. Attorneys to retain or replace immediately in the beginning of their terms. The reason for this tradition is to have a clear marker of turnover to avoid precisely this kind of appearance of interference (or actual interference) in investigations and the administrative justice.

There is only one modern precedent for this conduct, and it is not one to emulate: George W. Bush’s dismissal of seven U.S. Attorneys in December 2006.  The Washington Post reported at the time: “Although Bush and President Bill Clinton each dismissed nearly all U.S. attorneys upon taking office, legal experts and former prosecutors say the firing of a large number of prosecutors in the middle of a term appears to be unprecedented and threatens the independence of prosecutors.” (Gonzales: ‘Mistakes Were Made’). As the story unfolded, the Bush administration had warned these U.S. Attorneys and a handful of others that they weren’t prosecuting enough voter fraud (i.e., Democratic voters) or public corruption cases (i.e., Democratic office holders).  Chris Christie, the New Jersey U.S. Attorney, and Steven Biskupic, the Wisconsin U.S. Attorney, got themselves off the firing list by following the marching orders. Biskupic’s case was particularly scandalous, as the Wisconsin prosecutor won a conviction of a Democratic officer that was later overturned and harshly criticized as baseless by federal courts. The scandal led to Alberto Gonzales’s resignation.

It certainly appears that a similar interference may have occurred on Friday. Bharara has implied as much, tweeting: “By the way, now I know what the Moreland Commission must have felt like.” The Moreland Commission was investigating corruption in New York until Governor Andrew Cuomo suddenly disbanded it. The rumor was that the commission was getting too close to Cuomo for comfort. If Bharara can back up this implication with some solid facts, hold on to your seats. Trump might not hold on to his office, if the right dominoes fall.

To start toppling dominoes with subpoenas or legal discovery, the only solutions now are 1) a special federal prosecutor (don’t expect Trump’s DOJ to allow this);  2) Congressional committee hearings (good luck); and 3) state attorneys general investigating, the most likely option politically.
 

Author: Jed Shugerman

Legal historian at Fordham Law School, teaching Torts, Administrative Law, and Constitutional History. JD/PhD in History, Yale. Red Sox and Celtics fan, youth soccer coach. Author of "The People's Courts: Pursuing Judicial Independence in America" (2012) on the rise of judicial elections in America. I filed an amicus brief in the Emoluments litigation against Trump along with a great team of historians. I'm working on "The Rise of the Prosecutor Politicians," a history of prosecutors and American politics, and another project on the origins of independent agencies in America.

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