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A President's New York Prosecutors

by Dara L. Miles, Oct 24, 2008
 

The two top federal prosecutors in New York City soon may be pondering their next career moves, especially if voters put a Democrat in the White House. If tradition holds, the incoming administration will replace most of the nation's U. S. attorneys, who are political appointees, with those of its own choosing. And with the Justice Department still reeling from allegations of improper hirings and firings under the Bush administration, critics say it may be time to reconsider how the head prosecutors are selected.

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The U. S. attorneys in New York City are Michael J. Garcia in the Southern District, which includes Manhattan, The Bronx and Dutchess, Rockland, Orange, Putman, Sullivan and Westchester counties, and Benton Campbell in the Eastern District, which includes Brooklyn, Queens, Staten Island, and Suffolk and Nassau counties. They are two of the Justice Department's 93 chief federal prosecutors.

Garcia, appointed by President George W. Bush, took the helm in 2005 after serving as head of Immigration and Customs Enforcement for the Department of Homeland Security. Campbell, a former assistant deputy attorney general, was appointed U. S. attorney for the Eastern District about a year ago. Both men had extensive experience as federal prosecutors in their districts before their appointments.

Party Politics

U. S. attorneys prosecute criminal cases like racketeering, bank fraud and terrorism, and represent the United States in civil suits. They oversee sometimes large staffs of assistant U. S. attorneys, so-called "career prosecutors"-- civil servants who are not affected by a change in the administration. In contrast, the U. S. attorneys are appointed by the president, serve at the president's discretion, and generally leave when the president does.

"You know when you take the job that it's a political appointment and there will be an end to it," said Mary Jo White, a former U. S. attorney for the Southern District who is now in private practice in New York. Usually the incoming administration allows several months for an orderly transition, White said, in order to minimize disruption to ongoing cases.

But not always. When Bill Clinton was elected, he reportedly sent word that the U. S attorneys were expected to resign "immediately or as soon as they could." White, who was appointed by George H. W. Bush, was one of the exceptions. The new administration asked her to stay on for another year because she had hands-on involvement in the prosecution of some high-profile terrorism cases, including those arising from the bombings of the U. S. embassies in East Africa.

Politics plays an essential role in the appointment of a U. S attorney. Traditionally, a candidate is first recommended by that person's home-state senior senator-if the senator belongs to the president's political party. If both senators from that state are from the opposition party, the choice falls to the senior state official of the president's party. Once the White House approves the candidate and makes the official nomination, the same home-state senator plays a key role in securing Senate confirmation.

In 2005, it fell to Gov. George Pataki, a Republican, to recommend Garcia for the Southern District post, because there was no Republican senator from New York. The Senate then confirmed Garcia. In the Eastern District, the Justice Department appointed Campbell on an interim basis, and he was later sworn in as U. S. Attorney, although Senate confirmation is still pending.

The appointment system has come under fire several times in the last half-century. State and local bar associations sometimes raise an outcry about a particular nomination, when they view the candidate as unqualified due to a lack of experience. More recently, it was revealed that the Bush White House had routinely screened candidates to see if they had political ideologies in line with the administration's policies. And last year, a congressional probe found that partisan politics fueled the firings of nine U. S. attorneys in 2006. Attorney General Michael Mukasey appointed a special prosecutor in Septembre to look into whether there was any criminal behavior in the firings.

A Merit System?

"There's a morale issue in the U. S. attorneys' offices," said Timothy J. Heaphy, a former assistant U. S. attorney in the District of Columbia and Western Virginia. "The politicization has discouraged the people who work there." In an October essay in Legal Times, Heaphy called for another look at a merit-based selection system to "help remove the taint of politicization and restore Justice's reputation for independence."

Merit selection was first proposed by then-presidential candidate Jimmy Carter in 1976. Under the plan, each state would have an independent nominating commission to solicit, screen and recommend applicants to the home-state senator based on the candidate's qualifications rather than political connections.

"Carter couldn't really sell that," Heaphy said. "The Senate predictably didn't want to give up their almost exclusive power to appoint those people." Now, however, with the Justice Department operating under a cloud of suspicion, Heaphy says the time may be right for a renewed discussion about reform.

The New York Offices

Even without a merit selection system, the U.S. attorney's offices in New York City have a reputation for being largely above the taint of political patronage and favoritism. Many of the cases tried by federal prosecutors in Manhattan and Brooklyn have made headlines-if not history. Alger Hiss and Julius and Ethel Rosenberg were tried in the Southern District, as were Ivan Boesky, Michael Milkin, Martha Stewart and many mob bosses. The Eastern District office was responsible for convicting John Gotti, as well as defendants in the Abscam political corruption case, the Zakharov spy case and the Abner Louima police torture case.

Of the two offices, the Southern District is larger, with around 220 attorneys compared with about 160 in the Eastern District. A white-collar criminal defense attorney in New York, Marc Mukasey, calls the Southern District "the best of the best."

"It's the Top Gun school for federal prosecutors," said Mukasey, a former assistant U.S. attorney and the son of Attorney General Michael Mukasey. "It's the busiest office, with the greatest tradition, the highest standards, and it takes in the most demanding work."

"The Southern district continues to be one of the most important federal U. S. attorney's office in the United States," said Otto Obermaier, who headed the office from 1989 to1993 under President George H. W. Bush. In addition to the large volume of high profile cases, he said, the district has historically been able to attract a wealth of legal talent. Manhattan federal prosecutors have gone on to become federal judges, secretaries of state, and even mayor of New York City. Two assistant U. S. attorneys - Felix Frankfurter and John Marshall Harlan II--became justices of the U.S. Supreme Court.

"It has always had exceptionally talented people. While the U.S. attorney can be and often is a political appointment, the tradition of the office itself compels the appointment of extremely talented assistants." Obermaier said. "Being U.S. attorney in the Southern district is kind of like being the musical director to the New York Philharmonic. It's great you can get up there and wave the baton around, but it helps to have extraordinarily talented musicians."

 


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