The "everybody does it" defense

One of the most frustrating things about the Bush administration is the way that the White House and its supporters fall back on the defense that all administrations do X -- a claim that obscures differences in degree that amount to differences in kind.

For instance, when we wrote about the administration's dishonesty about policy in All the President's Spin, one response we heard from a number of people -- including at least one "counter-intuitive" liberal journalist -- was the banality that all politicians lie and dissemble. That is true, of course. But the frequency and sophistication of the administration's deception about policy was a difference in degree that amounted to a difference in kind.

Similarly, the Bush administration and its supporters are now essentially admitting that eight US attorneys were removed from office from political reasons. Their claim is that presidents always change US attorneys to meet their governing priorities, pointing to the Clinton administration's replacement of incumbent US attorneys when it took office. For instance, the Wall Street Journal editorial board writes the following:

U.S. attorneys are "political appointees," and so by definition can be replaced for political reasons. If San Diego's Carol Lam was out of step with the Administration's priorities on immigration enforcement, or New Mexico's David Iglesias was judged insufficiently aggressive on voter fraud, then it was entirely appropriate for the President to replace them with officials more in line with his views. What's the alternative? Presumably, Mr. Bush's Congressional critics would have him--and his successors, Republican and Democratic--preside over political appointees who are unaccountable to anyone except Congress.

But again, this is a difference in degree that amounts to a difference in kind. As Matthew Yglesias pointed out (among others), there's an important distinction between a blanket removal of US attorneys when a president assumes office and removing specific appointees during through a term for failing to prosecute Democrats. Even David Brooks gets the distinction:

The founders made prosecutors political appointees.

But the word "political" in this context has two meanings, one philosophic, one partisan. The prosecutors are properly political when their choices are influenced by the policy priorities of elected officeholders. If the president thinks prosecutors should spend more time going after terrorists, prosecutors should follow his lead.

But prosecutors are improperly political if they bow to pressure to protect members of the president’s party or team. Most would agree that Harry Truman was being improperly political when he tried to block the reappointment of Maurice Milligan, a U.S. attorney investigating the Pendergast political machine in Missouri.

The problem is that there is a gray area between these two political roles. People of good faith disagree about whether the Clinton administration behaved improperly in firing almost all of the 93 prosecutors it inherited, in the midst of some high-profile and politically troublesome cases.

Prosecutors, like other professionals, develop a code of honor to help them steer through the gray areas. This code of honor consists of a series of habits and understandings to help individual prosecutors know how to behave when loyalty to the law is in tension with loyalty to the president.

...When you look at the prosecutors who were fired by the Bush administration, you see some who were fired for proper political reasons and some who were fired for improper ones. Carol Lam seems to have been properly let go because she did not share the president’s priorities on illegal immigration cases. David Iglesias seems to have been improperly let go because he offended some members of the president’s party.

But what's striking in reading through the Justice Department e-mail messages is that senior people in that agency seem never to have thought about the proper role of politics in their decision-making. They reacted like chickens with their heads cut off when this scandal broke because they could not articulate the differences between a proper political firing and an improper one.

Moreover, they had no coherent sense of honor. Alberto Gonzales apparently never communicated a code of conduct to guide them as they wrestled with various political pressures. That's a grievous failure of leadership.

It's also important to note the creeping relativism behind these arguments. All politicians mislead sometimes, so it's ok to do so systematically. US attorneys are political appointees, so it's ok to replace them for partisan reasons. When does that "responsibility era" begin again?

Comments

[Daniel DiRito]

On Thursday Alberto Gonzales told us he is working tirelessly to be sure he has every American's back covered...especially our children. Should the firing of six top US Attorney performers make us feel better?

I don’t know about anyone else but I’ve always been suspicious of the guy that seems to go out of his way to tell you he’s "got your back covered".

See a sarcastic visual that demonstrates how many Americans feel when the Attorney General reassures us that he's got our backs covered...here:

www.thoughttheater.com

[Rob]

Over the last thirty years there's been a clear trend toward depoliticizing the attorney general and U.S. attorneys. That's not altogether a good thing.

Would John Kennedy and his attorney-general, Robert Kennedy, have permitted U.S. attorneys to continue serving who didn't reflect the Administration's policy objective with respect to civil rights? I don't think so, and they'd have been right.

As Barbara Boxer pointed out at the climate change hearing this week, elections have consequences. There ought to be accountability at the highest political level for the enforcement priorities and objectives that are undertaken in the name of the government. If people disagree with those objectives, the solution is to vote out the rascals and let the other guys have a chance.

Establishing U.S. attorneys as a sacrosanct priesthood is undemocratic and contrary to the tripartite division of power that is established by our Constitution. Regrettably, it's a trend that will only be enhanced by the current attempts to gain political capital from the replacement of these eight U.S. attorneys.