Creating Career Prosecutors
Today's divide between politically appointed prosecutors and career prosecutors is a relatively recent phenomenon, beginning in the aftermath of the Watergate scandal.
Justice Briefs is a weekly newsletter devoted to federal criminal prosecution. The federal government’s evolution over the last 230 years has given federal prosecutors significant discretion. Few realize it exists and even fewer know how it is used. Justice Briefs aims to make federal prosecutions and prosecutors more accessible to the general public. Please help me in this endeavor by subscribing and sharing with others.
Justice in Brief
*In the Southern District of Florida, a man entered a guilty plea for conspiring to sell endangered turtles to Hong Kong and Germany and falsifying documents related to the shipping. The man operated an unlicensed business, captured the turtles in Florida, and shipped them overseas.
*In the District of Oklahoma, four men have entered guilty pleas to rigging bids forstate construction projects. They conspired to divide state contracts among themselves. The company given the specific project presented an overpriced bid while the others bid even higher or did not bid at all.
*In the Southern District of New York, the Justice Department unsealed an indictment chanrging an Iranian man with cyberattacks on the United States government, defense contractors, and New York-based companies. He, and others, attepted to access computers by tricking autorized users into disclosing their passwords.
Career prosecutors - An Origin Story
The divide between career federal prosecutors and politically-appointed federal prosecutors has arisen in the last 50 years. Like so much of our political world today, the origins of the divide can be traced to Watergate, the scandal that resulted in President Richard Nixon resigning the presidency. Nixon used his position to obstruct the investigation. Soon after, Assistant United States Attorneys received employment protections similar to the Civil Service. This, plus the work, led to assistant federal prosecutors remaining in their position after the United States Attorney that hired them left office. Prior to Watergate, this was an unusual occurrence.
The original United States Attorneys did not have offices, let alone assistants. All federal prosecutors were part-time. The federal government was just one of the attorney’s clients. If circumstances warranted, Congress could authorize special assistants. For example, in the 1799 Fries Rebellion cases, United States Attorney for Pennsylvania, William Rawle, hired Samuel Sitgreaves to assist with the voluminous prosecutions. This continued throughout the 19th century.
By the start of the 20th century, many offices had full-time assistants. While they did the requisute criminal work, most focused on customs cases, especially in larger port cities such as New York. The customs cases brought money into the office which, then, went to the attorneys. The money accumulated through customs cases supplemented the meager salaries Congress appropriated for assistants.
This began to change in larger United States Attorneys office as the 20th century progressed. The change began with Henry Stimson’s appointment as United States Attorney for the Southern District of New York. Tasked with leading the criminal litigation against companies engaged in unlawful commercial practices, Stimson needed high-quality but low cost attorneys. He found by recruiting from law schools, he could attract talented and eager attorneys. His first recruits included a future Supreme Court Justice and United States Solicitor General. When Stimson left office three years later, the assistants he recruited left with him. Thus started a new trend.
Troughout most of the 20th century, assistant United States Attorneys left office when the hiring United States Attorney left. Most often, this was the result of a presidential change. For example, in 1933, when Franklin Roosevelt entered the presidency, an assistant United States Attorney in the Southern District of New York named Thomas Dewey resigned at the same time as the United States Attorney. Dewey, by 1944, would be running for President against Roosevelt.
As criminal law and criminal prosecutions became more complex, the lack of experience in United States Attorney’s offices became a significant problem. Most assistants worked only 2-3 years in the office. They were there to get some trial experience and build their resume for a large, private law firm. When signficant and complex prosecutions arose, the young assistants were overmatched. Beginning in the mid-1970s, attorneys began remaining in office longer. By the 1980s, offices tended to be half career assistants and half short-timers. As the 21st century began, the turnover rate among assistants dropped to 2% annually.
A significant change in prosecution resulted from this shift. When assistants left with the United States Attorney, the assistants identified with the United States Attorney. This meant that each individual United States Attorney could pursue an independent agenda. If that particular United States Attorney wanted to emphasize drug prosecutions, the office would follow. When assistants began outlasting the United States Attorney, the loyaly of the assistants shifted to the Justice Department. The Department now had more control over the assistant career path than the United States Attorney. As a result, incoming United States Attorneys could not implement individual policy as effectively.
The longevity of assistants emboldened them. They became disconnected from political influence. They became experts in particular crimes. They understood the issues that arose in all types of cases. With this background and experience, there was nothing for a politically-appointed prosecutor to contribute.
This, then, is the other side of Bill Barr’s argument. While politically appointed prosecutors provide the democratic legitimacy to federal prosecution, career prosecutors provide the technical expertise. How do these two perspectives work together? The best answer requires a virtuous prosecutor, the subject of the next series.
I hope you enjoyed this issue and that it made you stop and think. I would love to hear any comments, questions, concerns, or criticisms that you have. Leave a comment or send a message! Also, if you enjoyed this or if it challenged your thinking, please subscribe and share with others!