In March 1993, Janet Reno began her tenure as President Bill Clinton’s attorney general by summarily firing United States attorneys for 93 of the 94 federal districts (one, Michael Chertoff, was retained in New Jersey, at the request of Democratic Senator Bill Bradley). That is more than twice as many as Trump attorney general Jeff Sessions fired on Friday.
Indeed, there were only 46 Obama-appointed U.S. attorneys left for Sessions to relieve because Obama appointees fully understood that this is the way things work. Many of them had already moved on, in the expectation that the president elected in November would replace them — an expectation that became a virtual certainty once it was clear that this change of administrations would be a change of parties, and visions.
It is frequently observed that, to be legitimate, law enforcement must operate independently of politics. It is an oversimplification, coupled with a misunderstanding of politics in its non-pejorative sense.
Of course the conduct of investigations, prosecutions, and their consequent judicial proceedings must be immune from partisanship. It would be intolerable for people to be targeted for, or insulated from, criminal law enforcement based on their political connections. Law enforcement, however, is about more than handling individual cases. It is about making overarching policy choices.
Resources are finite. Administrations must choose how many assets to dedicate to counterterrorism, immigration enforcement, health-care fraud, organized crime, and so on. Should the feds focus on the importation of illegal narcotics and their distribution by interstate criminal syndicates? Or should prosecutors and agents team up with state agencies to tackle street-level trafficking? Are the civil-rights laws an enforcement measure to protect fundamental liberties? Or are they a social-justice tool for transforming nationwide policing practices?
These policy choices are the stuff of politics. They often weigh heavily in presidential campaigns and elections. Law-and-order issues intimately affect people’s lives. When presidents make promises about them, they must expect to be held accountable.
U.S. attorneys are the instruments through which the president exercises his policy discretion. That is why they are political appointees. They do not have power of their own. Under our Constitution, all executive power is reposed in the president alone. Every officer of the executive branch is thus a delegate. The U.S. attorney exercises the president’s power and can be removed at the president’s will.