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Pay Attention to the Prosecutors Who Weren’t Fired

A couple of weeks ago, I bumped into a former U.S. attorney, a partisan Republican known for his vigorous defense of the Bush administration, but also a man of impeccable integrity as a prosecutor. He was hopping mad about the U.S. attorney scandal and the performance of the Justice Department and the White House. [IMGCAP(1)]

What was most interesting, however, was his insistence that the big problem was not the eight federal prosecutors fired, but the ones left in place. He told me to watch the cases of those who kept their posts while pursuing unwarranted and politically motivated prosecutions.

One of those alleged cases has now received substantial attention — that of Steven Biskupic, the U.S. attorney in Milwaukee. The 2006 Wisconsin gubernatorial election was heated, and corruption charges against the incumbent, Democrat Jim Doyle, were a key issue raised by his opponents. Exhibit A was the case of a state employee sent to jail for bid-rigging. These opponents spent millions right before the election on ads tying Doyle to Georgia Thompson, a state civil service employee (incorrectly referred to in some ads as “a Doyle aide”) who was convicted of steering a travel contract to a firm whose CEO had contributed to Doyle’s campaign.

Thompson was convicted in mid-2006 and sentenced in late September, just in time for the heat of the campaign. The judge put her in prison, not waiting for her appeals. Now a three-judge panel of the 7th U.S Circuit Court of Appeals, with two of the three Republican appointees, has thrown out her conviction even before hearing oral arguments and ordered Thompson immediately freed from jail after she had been inside for 130 days. One of the judges called the evidence used to prosecute her “beyond thin.” It is almost unprecedented for a panel of this sort to throw out a conviction without sending the case back to the trial court and to order an immediate release from prison. The signal the three appeals court judges were sending was even more damning than the phrase “beyond thin.”

As stories in the Milwaukee Journal Sentinel and other Wisconsin papers demonstrate, there are elements of this case that raise very serious questions. The alleged crime occurred not in Milwaukee but Madison, Wis., which was not in Biskupic’s jurisdiction. The investigation into Thompson’s role was announced publicly by Biskupic long before an indictment. And we now know that Biskupic was on a Justice Department hit list of U.S. attorneys. That this case would become a political football was clear early on — it fit into wider investigations into the Doyle administration’s fundraising practices. To bring a case like this so soon before the highly charged gubernatorial election is itself shaky.

Biskupic is not the only one exhibiting questionable conduct in this case. The trial judge, Rudolph Randa, an appointee of former President George H.W. Bush, took the highly unusual step of sending Thompson to prison before allowing her appeal to go forward — thus forcing a woman subsequently found resoundingly innocent by the appeals court to spend four months in jail.

Biskupic does not have an overall record as a partisan hit man. He previously had resisted overtly political and shaky prosecutions of vote fraud and has prosecuted both Democrats and Republicans on corruption charges. Of course, his refusal to prosecute vote fraud cases might have put him on the White House/Justice list of potential firees. Biskupic has denied knowing he was on any list, certainly at the time he went public with his investigation of Thompson or when he went for a prosecution.

This case obviously needs to be explored in depth by Congress. Is there any evidence that the Justice Department or the White House contacted Biskupic to complain about his failure to prosecute earlier cases, or to suggest that he ramp up his efforts in this area? And what about others kept in office: Were there other prosecutions of vote fraud and public corruption that were equally thin?

At some point, Congress also needs to step back and look at the broader question of the long-standing process of nomination and confirmation of U.S. attorneys. Presidents have had near-complete freedom to hire and fire them, and there is tradition for presidents choosing their own partisans for the posts. But we have managed over decades to build in checks and balances against prosecutors operating in a partisan fashion, including the Senate confirmation process and the ethos among prosecutors to use their immense power with restraint and integrity. To hear some observers now say that presidents can push prosecutions they want, and can fire anyone they want for any reason except to impede an ongoing investigation, is to realize that it would be very easy to lose that ethos.

One small reform might help re-right the balance a bit: Apply to federal prosecutors the process used for inspectors general. IGs are nominated by presidents and confirmed by the Senate. But if a president wants to fire one, he has to supply to Congress in writing the reasons for removal. This requirement adds a patina of additional independence to the IGs, and if applied to U.S. attorneys would add an additional speed bump to a president and a Justice Department before they acted to remove one or several.

This modest change in the process is not enough to erase abuses, including those of retaining U.S. attorneys who are willing to toe the line on politically driven prosecutions. But it would be a step in the right direction.

Norman Ornstein is a resident scholar at the American Enterprise Institute.