A Brief Description of the History and Responsibilities of US Attorneys

The position of US attorney was established by the Judiciary Act of 1789, which provided each of the 13 original federal judicial districts an officer to prosecute violations of civil and criminal law and defend the United States in civil actions. Today, there are 93 such officers, each assigned to a federal judicial district.Footnote ² The president nominates these individuals, and their 4-year term commences upon confirmation by the US Senate. Like lower court judges, they are subject to a blue-slip process that allows home-state senators to block their nominations. This selection process has been referred to as being “the greatest influence on how U.S. Attorneys perform their duties,” and, as such, scholars have noted the importance of avoiding adverse selection at this stage as a way to maximize control over these agents (Nelson and Ostrander Reference Nelson2016, 211). As political appointments, it is customary for USAs to submit their resignations upon a change in administration—although the incoming president may ask them to remain. Thus, while they garnered headlines, decisions of incoming presidents such as Clinton (Johnston Reference Johnston1993) and Trump (Savage and Haberman Reference Savage2017) to replace holdover USAs are qualitatively different from the events we examine here.

Aside from departures that coincide with a change in administration or the completion of a 4-year term, both the large number of USAs as well as their often-ambitious career goals can create periodic vacancies. In fact, between 1981 and 2006, at least 54 presidentially appointed USAs left office before the completion of their term—a plurality of those became federal judges, and a number of others embarked on lucrative private sector careers or campaigns for office (Scott Reference Scott2007). As a consequence, the procedure for appointing interim USAs carries significant potential implications. Between 1898 and 1986, these interim appointments were made by the respective federal district courts. In 1986, the attorney general gained authorization to make interim appointments, but those appointments were limited to 120 days. If a vacancy continued past the 120-day limit, the district court would then make an interim appointment.

That changed in 2006 when Congress reauthorized the USA Patriot Act. It removed the 120-day limit and eliminated the district court’s role in appointing interim USAs altogether, giving the attorney general plenary authority to make appointments that would remain in effect until the Senate’s confirmation of a “permanent” successor. This was the process in place when the dismissals considered in this study occurred, although discussions in the administration about replacing USAs had begun approximately a year before this statutory change (Nelson and Ostrander Reference Nelson2016).Footnote ³

USAs have historically operated with significant discretion—particularly when dealing with criminal matters, which comprise the bulk of their time and attention (Perry Reference Perry1998). As described by Richman (Reference Richman2009, 2090), “Federal criminal law … has long been characterized by extraordinarily broad substantive statutes and enforced by a relatively small bureaucracy that can pick and choose among possible targets.” Although USAs are also responsible for overseeing civil cases, they care most about crime (Perry Reference Perry1998, 139). Others (e.g., Eisenstein Reference Eisenstein1978; Glaeser, Kessler, and Piehl Reference Glaeser2000; Lochner Reference Lochner2002; Whitford Reference Whitford2002) similarly note that USAs possess significant discretion and should be expected to exercise it strategically.

Although prosecutors consider “winnability” in bringing cases, setting priorities with respect to categories of cases is primarily a political choice—not a legal one (Perry Reference Perry1998; Lochner Reference Lochner2002). And, to the extent that the association between USAs and the executive branch can be viewed as a principal-agent relationship, it is ultimately the USA’s responsibility to carry out the priorities of her political principal within legal bounds. Given this, centralization or oversight by the DOJ (“Main Justice”) is a focus of studies of USA decision-making. It is generally recognized that such oversight occurs to “impose policy decisions that may be driven by substantive concerns, a desire for uniformity, a desire to minimize abuses of discretion, or politics,” rather than because of “superior trial experience or judgment” (Green and Zacharias Reference Green2008, 202). In other words, although Main Justice may be uninterested in routine criminal matters, it does set the parameters of national policy (Iglesias Reference Iglesias2008, 162). Green and Zacharias (Reference Green2008, 200) conclude that centralization is most sensible when the DOJ emphasizes the importance of particular issues, and there is a wealth of evidence to suggest it has become increasingly willing to do so (e.g., Suthers Reference Suthers2008, 112–15; Richman Reference Richman2009; Ingle and Symons Reference Ingle2012).

Countering these centripetal forces is the notion that USAs must be responsive to conditions in their districts. “The entire institutional framework of federal prosecution is premised on the normative assumption that USAs should be and will be responsive to their local communities” (Apollonio, Lochner, and Heddens Reference Apollonio2013, 247). Richman (Reference Richman2009) identifies two pragmatic reasons why Congress should want to limit the centralization of authority in Main Justice. First, preserving the autonomy of local USAs limits the president’s agenda-setting ability. Second, Richman suggests that decentralization can give members personal leverage in their respective states or districts.

At the same time, USAs are subordinate to the attorney general’s authority, and there are ample reasons why they should be. There is an expectation of standardization in the nation’s basic law enforcement goals (Eisenstein Reference Eisenstein2007, 222). Such political responsiveness is a critical element of democratic accountability. The balance between centralization and decentralization has oscillated over time, by administration, and across case categories. The amount of centralization in Main Justice was especially strong during the George W. Bush administration (e.g., Driscoll Reference Driscoll2007) until the backlash that resulted from the attorney firings of 2006; this marked a contrast with the DOJ under Attorney General Reno during the 1990s (Richman Reference Richman2009). With the important exception of Eisenstein (Reference Eisenstein2007), scholars have generally concluded that the forces of centralization have grown in recent years (e.g., Lochner Reference Lochner2002). This conventional wisdom is consistent with broader trends toward centralization in the bureaucracy, which have occurred as the White House has sought ways to limit agency discretion (Wilson Reference Wilson1989, 264). As former USA John Suthers (Reference Suthers2008, 112) notes, “More and more of U.S. attorney discretion has become subject to the scrutiny of ‘Main Justice.’”

Politics, Accountability, or Impudence? The US Attorney Firings of 2006

The prospect of targeting a number of USAs for dismissal first gained traction in the weeks after President Bush’s 2004 reelection; the dismissals themselves would occur in several stages, but not until 2006. Seven of the nine were forced out on December 7, 2006, and resignations had been requested from two others earlier in the year, although accounts frequently treat the nine removals as a package (Office of the Inspector General 2008).Footnote ⁴ The firings were a drastic tactic: “Although the nine fired U.S. Attorneys had served more than four years, their firings were both unprecedented and counter to a long-standing and widespread consensus that they could expect to continue to serve until either they left voluntarily or resigned at the end of an administration” (Eisenstein Reference Eisenstein2007, 234).

It was only after Attorney General Alberto Gonzalez and White House Counselor Harriet Miers joined the administration that the proposal to dismiss a number of USAs, generally credited to the attorney general’s chief of staff Kyle Sampson, became the subject of meaningful discussion. In March 2005, Sampson produced an initial list of 14 USAs he recommended for removal. By December 2006, seven lists had been generated within the administration. At the time of the dismissals, 28 names had appeared on at least one of the lists.

In many of the nine dismissals, the OIG’s report determined that the administration’s proffered reasons for the firings—all of which were styled in relation to performance—were conflicting and inconsistent. The first USA directed to resign was Todd Graves of the Western District of Missouri; Michael Battle, director of the Executive Office for U.S. Attorneys, called Graves and instructed him to resign on January 24, 2006 (Office of the Inspector General 2008, 108). H. E. “Bud” Cummins of Arkansas’s Eastern District was asked to resign in June 2006. The seven remaining USAs were informed of their dismissals on December 7, 2006. In each case, the administration set forth alleged reasons for the firings that were unique to the individual at hand. For instance, Deputy Attorney General Paul McNulty described David Iglesias, the USA for New Mexico, as being “underperforming” and an “absentee landlord” who relied excessively on a subordinate to run his office. Despite numerous unanswered questions, the inspector general’s report concluded Iglesias’s removal was precipitated by complaints from Senator Pete Domenici and Representative Heather Wilson about Iglesias’s handling of investigations into voter fraud and public corruption. Indeed, Iglesias relayed conversations he had had with Wilson and Domenici, his former mentor, before a congressional subcommittee in 2007.Footnote ⁵ Iglesias in particular came to exemplify the idea that political considerations may have exerted improper influence in the firings.

The stated justifications for the removal of USA Daniel Bogden of Nevada centered on his purported resistance to the attorney general’s priorities—essentially the prioritization (or the lack thereof) of obscenity prosecutions. An alleged lack of energy and leadership in an office “where we have the right to expect excellence and aggressive prosecution in a number of priority areas” was also mentioned as a justification for his firing (Office of the Inspector General 2008, 202). Paul Charlton, the USA for Arizona, was allegedly removed for being “insubordinate as to the Department’s way of doing business” on the death penalty and the taping of interrogations (221). John McKay, headquartered in Seattle, was said by DOJ officials to have been removed for performance-related issues. More cynical observers felt the firing was rooted in McKay’s failure to prosecute alleged voter fraud in the 2004 Washington gubernatorial election, although the inspector general unearthed no direct evidence to substantiate that allegation.

The firing of Kevin Ryan as USA for the Northern District of California represents an instance in which both administration officials and the OIG were in agreement—Ryan had been removed in response to his office management. Significant concerns about his management had been reflected in two independently administered EARS (Evaluation and Review Staff) reviews that were “blistering”; according to the Los Angeles Times, Ryan was an administration loyalist, but his administrative and management failings were “well documented,” and he was added to the list because of them (Dolan Reference Dolan2007).

Margaret Chiara of Michigan’s Western District and the Southern District of California’s Carol Lam were the other USAs to be dismissed. The inspector general’s report concluded that Chiara had been fired for office management issues and noted that concern about her management style was long-standing and had, in fact, increased over time. Lam’s firing, by contrast, allegedly grew out of Main Justice’s dissatisfaction with her office’s prosecution of firearms and immigration cases. Some believed that Lam’s firing had been precipitated by her office’s investigation of former Republican congressman Randy “Duke” Cunningham on allegations of corruption, but the OIG report could not corroborate that supposition. Nevertheless, the inspector general faulted the DOJ for failing to examine Lam’s justifications for her comparatively low prosecution rates in firearms and immigration cases—namely, that her office emphasized the quality of such prosecution over quantity. Testifying before Congress, Principal Associate Deputy Attorney General William Moschella made clear that Main Justice was uninterested in any context or justification for Lam’s “low” numbers: “Quite frankly, her gun prosecution numbers are at the bottom of the list. She only beat out Guam and the Virgin Islands in that area” (Washington Post 2007). In her response, Lam lamented “the unfortunate bean-counting approach … that the Department came to employ.”Footnote ⁶

However, beneath this focus on the dismissed USAs lurks another question—to what extent did being targeted for dismissal result from issues at the heart of principal-agent theory: concerns about the selection of personnel and the monitoring of their performance? The initiative for removing the USAs seems to have come first from Harriet Miers, White House counsel, who wanted to dismiss all the USAs. Sampson and others believed this to be “unwise” and instead used Miers’s idea “as a way to replace some weak U.S. Attorneys” (Office of the Inspector General 2008, 21). To this end, the initial list was styled as an informal performance review and contained recommendations that USAs be retained, be removed, or had not distinguished themselves either positively or negatively. Sampson circulated a second list in January 2006 and a third in April, which he later stated had been compiled “based on my review of the evaluations of their offices conducted by EOUSA [Executive Office for United States Attorneys] and my interviews with officials in the Office of the Attorney General, Office of the Deputy Attorney General, and the Criminal Division” (28). The plan gained real traction in the fall of 2006, and four additional lists were disseminated between September and December. Sampson described the compilation of these lists as the product of “consensus” whereby he aggregated names and managed the process, although the OIG report disputed aspects of that account.

Principal-Agent Theory, Political Appointments, and Monitoring

We have suggested that the relationship between the DOJ and USAs fits that of principal and agent (see also Perry Reference Perry1998); although there is no single template capturing the wide range of such relationships (e.g., Waterman and Meier Reference Waterman1998; Gailmard Reference Gailmard2014), principal-agent theory has been recognized as a way to understand bureaucracies through the lens of rational choice (e.g., Moe Reference Moe1984; McCubbins, Noll, and Weingast Reference McCubbins1987; Wood and Waterman Reference Wood1994). Central to that theory are the concepts of moral hazard and adverse selection (Moe Reference Moe1984; Brehm and Gates Reference Brehm1997; Gailmard Reference Gailmard2009), both of which are based on assumptions about human nature and relate to the lack of full and complete information that principals inevitably face (Perrow Reference Perrow1986). Adverse selection refers to the risk inherent in choosing agents who are not in alignment with a principal’s goals, whereas moral hazard reflects the impossibility of observing an agent’s every action.

The most efficient way to ensure that principals and agents possess shared goals is for principals to appoint agents with care; this is of particular significance when political actors face agents with substantial levels of independence (e.g., Brehm and Gates Reference Brehm1997; Ennser-Jedenastik Reference Ennser-Jedenastik2016). It is difficult to overstate the importance of avoiding this problem, as political appointment has been described as the single most effective—although imperfect—mechanism for controlling the bureaucracy (Wood and Waterman Reference Wood1991, 801; Reference Wood1994; but see Lewis Reference Lewis2008). USAs are no exception here (Nelson and Ostranger Reference Nelson2016).

Several factors might make the selection of a USA relatively (un)favorable to the administration. Given the norm of senatorial deference, in states in which the Bush administration faced Republican senators, the administration might have been more reluctant to replace a USA when it would face the potential wrath of a copartisan.Footnote ⁷ In fact, the association between USAs and senators from their home states has been described as “deliberately indistinct” (Iglesias Reference Iglesias2008, 96). Conversely, where there was no relevant Republican senator, the administration would face no such constraint, and the USA would likely align more closely with the administration’s priorities. Even given some apparent congressional apathy with respect to the USAs at this time, same-party senators were reluctant to concede authority over valuable patronage (Richman Reference Richman2009, 2106). At the same time, the presence of same-party control is hardly dispositive here. For example, the effects of blue slips in the hands of opposition-party senators can be a significant constraint on an administration’s freedom of action. Furthermore, even where no same-party senator is present, other local political actors will typically play important roles.Footnote ⁸ Even so, with a constitutionally mandated voice in the confirmation process, senators are crucial actors, and we expect they will represent an important potential constraint on the executive.

Once installed, Main Justice must then monitor USA behavior in order to limit shirking. In his typology of bureaucratic agencies, Wilson (Reference Wilson1989, 167) describes “craft organizations” as those engaged in activities that, while processes are difficult to observe, yield results that are easy to evaluate. Like other agencies within the DOJ such as the Antitrust Division and the Federal Bureau of Investigation (Wilson Reference Wilson1989), USA offices closely approximate craft organizations. In such venues, metrics such as case filings or criminal statistics are straightforward to obtain and assess, even as many of the specific activities and procedures are hidden from view. This, in turn, fosters bureaucratic accountability to the principal’s goals by providing a heuristic tool for engaging in oversight of ultimate results.

We do not necessarily assert that the case statistics we employ here accurately reflect true notions of “effort,” “performance,” or “mismanagement.” But we do believe there is ample evidence to suggest that the Bush DOJ viewed them as such. In addition to the Moschella testimony described above, scholars (e.g., Eisenstein Reference Eisenstein2007, 252), a number of the fired USAs themselves (Driscoll Reference Driscoll2007; Iglesias Reference Iglesias2008), and even some USA colleagues who were retained (e.g., Suthers Reference Suthers2008) have noted the Bush DOJ’s “statistics happy” mentality. And, to underscore that point, scholars have adduced evidence that USAs sought to have their terrorism case statistics keep pace with the post-9/11 DOJ’s prioritization of the issue, in part by reclassifying cases such as identity theft under the “terrorism” heading (see Chesney Reference Chesney2007). In the appendix, we display and discuss subject-specific models testing the possibility that Main Justice’s oversight might have been focused on particular case categories.

Simply put, it is difficult if not impossible to monitor all actions undertaken by bureaucratic agents. A host of factors accentuate this concern in the relationship between Main Justice and USAs. For one, the physical distance between Washington and USA offices makes continuous oversight cumbersome. Beyond that, despite being responsible for their offices, USAs cannot make every decision—indeed, there are different degrees of centralization over the decisions of line attorneys in the district offices (Green and Zacharias Reference Green2008, 200–202). Since Congress gave assistant USAs civil service protections in 1988, these subordinates have grown increasingly careerist and more difficult for USAs to oversee (Lochner Reference Lochner2002; Suthers Reference Suthers2008, 112). In such an environment, a constant, police-patrol type of bureaucratic oversight (e.g., McCubbins and Schwartz Reference McCubbins1984) could be appealing to principals at Main Justice.