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New attorney general and what that means for the legal landscape of the United States

In February of 2017, Attorney General Jeff Sessions, made the following statements to the National Association of Attorneys: “Illegal drugs flood across our southern border and into our cities bringing violence, addiction, and misery. In particular, we’ve seen an increase in the trafficking of new, low-cost heroin by Mexican drug cartels working with local street gangs.i ..At the end of 2015, there were more than 7 percent fewer federal gun prosecutions than five years before. In the same period, federal drug prosecutions declined by 18 percent.”ii He stated that his goals were to hire “prosecutors who work tirelessly...to put offenders behind bars [and have] judges who serve under the law, who interpret it faithfully as written.”iii When addressing the incarceration rates of U.S. citizens, the highest in the developed world, he stated: “Yes, incarceration is painful for the families of inmates...but the costs of rising crime are even more severe.”iv Startlingly, Sessions announced his aggressive stance after admitting that “crime rates in the United States remain at historic lows.”v

Presidential elections matter- and shape the laws of the United States. Although the Judiciary is supposed to interpret laws without considering partisan politics, it does not and never has. The lifetime appointments of Supreme Court justices ostensibly free them from political concerns and allow them to dedicate themselves to jurisprudence. However, the president carefully scrutinizes the political ideology of his Supreme Court picks so that he can craft an amenable judiciary. And if the Court veers too far out of line, the President can propose a shift in Court structure as did FDR and force the Court to adopt a sympathetic stance.vi Or, the President can simply ignore the Court, as did President Andrew Jackson who ignored Worchester v. Georgia, 31 U.S. 515 (1832), and implement his own agenda.vii

Yet the Supreme Court has largely maintained its veneer of political independence. Since 2006, U.S. Attorneys have not. This was not always so. The Judiciary Act of 1789, which created the positions of Attorney General and U.S. Attorney, contemplated some form of political independence and discretion for both offices.viii Since 1789, U.S. Attorneys have been responsible for enforcing federal laws in their respective districts with the goal of fair and impartial prosecution. 28 U.S.C. § 541 provides that U.S. Attorneys are appointed by the president with the advice and consent of the Senate, serve for four years, and upon expiration of the 4-year-term, serve until another U.S. Attorney is appointed and approved ix. The Attorney General, a purely political and partisan appointment, x sets the salaries of U.S. Attorneys and has “unfettered discretion to reassign cases from U.S. Attorneys to himself or any other staff of the Department of Justice.”xi.

Yet from 1981 to 2006, U.S. Attorneys enjoyed discretion and impartiality with only 3 of the 486 U.S. Attorneys being fired and three resigning due to questionable conduct ranging from admitting to marijuana use, to biting an exotic dancer, to assaulting a television reporter.xii However in 2006, President George W. Bush fired eight U.S. attorneys during their terms of service without specifying any misconduct that would have justified the termination and refused to cooperate with any investigation into the firings citing executive privilege.xiii The Patriot Act had given the Attorney General the authority to hire interim U.S. attorneys, which allowed the Executive to bypass the Senatorial approval process.xiv This meant that the Attorney General could remove a U.S. Attorney from an active and/or hostile investigation and replace that person with someone more sympathetic.

President Bush placed the U.S. Attorneys firmly under the authority of the Attorney General and President Obama did not reverse this process. Why does this matter? Because U.S. Attorneys are federal prosecutors and according to former Supreme Court Justice Jackson, “The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. Provided with such power, a prosecutor must practice in a way that is neutral and non-partisan.” xv However the job of the Attorney General is to find legal ways to effectuate the president’s stated policies; therefore, giving the Attorney General control over prosecutors robs them of vital political neutrality.

Attorney General Jeff Sessions has enunciated aggressive and controversial police positions on drug enforcement, police oversight, and immigration; and individual U.S. Attorneys who are unsympathetic can be easily replaced. Sessions’ unsubstantiated Mexican drug cartel comment and call for aggressive policing seem calculated to cause racial profiling against anyone who could be “Mexican.” His condemnation of drops in federal drug and gun prosecutions and call for greater incarceration is a departure from the policies of former Attorney General Eric Holder. Federal taxes will support his legal crusades. At the same time, organizations like the ACLU, NCAAP Legal Defense Fund, and Hispanic Bar Associations will require greater funding to mount successful challenges to Sessions’ aggressive measures.

  1. https://www.justice.gov/opa/speech/attorney-general-jeff-sessions-delivers-remarks-national-association-attorneys-general

  2. Id.

  3. Id.

  4. Id.

  5. Id.

  6. A Frank Reel “Letter to the Editor,” When A Switch in Time Saved Nine, N.Y. Times, Nov. 10, 1985 http://www.nytimes.com/1985/11/10/opinion/l-when-a-switch-in-time-saved-nine-143165.html

  7. Worchester v. Georgia, 31 U.S. 515 (1832).

  8. Michael Edmund O'Neill, Understanding Federal Prosecutorial Declinations: An Empirical Analysis of Predicative Factors, 41 Am. Crim. L. Rev. 1439 (2004).

  9. 28 U.S.C. § 541.

  10. Gonzales: “I Serve at the Pleasure of the President,” ABC News, Mar. 14, 2007, http://abcnews.go.com/GMA/story?id=2949749

  11. U.S. v. Gantt, 194 F.3d 987, 999 (9th Cir. 1999) quoting (Buckley v. Valeo, 424 U.S. 1 (1976)).

  12. See Kevin M. Scott, Congressional Research Service, U.S. Attorneys Who Have Served Less than Full Four-year Terms, 1981-2006, (Feb. 22, 2007), leahy.senate.gov/issues/USAttorneys/ServingLessThan4Years.pdf.

  13. Richard B. Schmitt, The Nation: Bush Refuses to Cooperate in Probe of Attorney Firings, L.A. Times, July 10, 2007, at A9.

  14. Susan Crabtree, Sampson in Hot Seat: Dems Want to Know Who Was Behind Plan to Circumvent Senate, The Hill, Mar. 28, 2007, available at http://thehill.com/leading-the-news/sampson-in-hot-seat-dems-want-to-know—who-was-behind-plan-to-circumvent-senate-2007-03-28.html.

  15. Attorney General Robert Jackson, Attorney General of the United States, Address at Second Annual Conference of United States Attorneys, (1940), in 24 J. Am. Jud. Soc'y 18 (Apr. 1, 1940)).

 

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