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Sessions’ attorney purge sets a bad precedent

Bill Coffin | March 13, 2017

I was nearing the end of my college days when, in late 1991, Bill Clinton was elected president. I was attending a fairly conservative university that turned out more than a few political science graduates, most of whom sought jobs working somewhere in politics. And I'll never forget the words of one friend of mine, a talented political operator even at the age of 21 or so. She was set to intern in D.C. for the summer, but suddenly those prospects looked a whole lot dimmer with the changeover in administration. "It's a bad time for Republicans right now," she wrote. Indeed. 

I was reminded of that when, over the weekend, the big news was the firing of U.S. Attorney Preet Bharara by President Trump. To really understand this, you need to go back to the days right after the Presidential election, last November. A number of federal employees were resigning either out of protest over the impending Trump administration, or out of the fatalism that comes with having a job by political appointment. After all, it isn't uncommon for plenty of positions to roll over during the first year of a new administration, even when the same party takes over.

However, Trump had reached out to Bharara, himself overseeing federal prosecution in southern New York, and thereby was essentially Washington's "sheriff of Wall Street," and asked him to stay on. Bharara agreed, and publicly stated as much, again not a surprise coming from a guy who had displayed two things during his time as a U.S. Attorney: a willingness to use the media as a bullhorn, and a willingness to ignore party lines when it came to his job. More than a few prominent Democrats have felt the sting from Bharara's office.

For Bharara, the surprise would come a little later, when, on March 10, Attorney General Jeff Sessions asked 46 U.S. Attorneys nominated by President Obama to resign. Bharara immediately made a big deal about not resigning, essentially daring the President to fire him. The President obliged. Perhaps the most interesting comment I have seen so far on that comes from Ken Julian, a partner at law firm Manatt, Phelps & Phillips, who previously served as a federal prosecutor in the Central and Eastern Districts of California. "The dismissal was well deserved," Julian said. "The U.S. Attorney must be above politics. Refusing to honor the resignation request was disrespectful to the new Attorney General.”

What's a little odd about the call for resignations, though, was that two days before, Sessions had a call with all 93 U.S. Attorneys and gave no indication that any of them were in danger of losing their jobs. So, the March 10 call for resignations was a little abrupt. It also echoes former Attorney General Janet Reno's purge of eight attorneys appointed by President George H.W. Bush. Reno's move subsequently spurred calls from both sides of the aisle that going forward, asking U.S. Attorneys to resign for political purposes should be done gradually so as to not disrupt the more important work of ongoing federal prosecutorial efforts.

Former Speaker of the House Newt Gingrich characterized the Sessions purge in general, and the firing of Bharara in particular, in terms of replacing members of an opposing team, as well as part of "draining the swamp." To a large extent, this is all just life in Washington. Nobody who takes a federal appointment should expect to keep it after a change in power unless there are some pretty extraordinary circumstances. But of concern is if a future administration, Republican or Democrat, were to take this current round of resignations as a play to follow. Are we really to expect mass changeovers within the top rung of federal law enforcement during the first 100 days of any new administration? That creates a level of uncertainty for any compliance officer who gets to spend the campaign year wondering if they can expect enforcement efforts to take a sharp tack one way or the other in Q1 following an election.

Perhaps a better way forward, as far as compliance officers might be concerned, would be to look at the example of SEC Chair Michael Piwowar. Himself a Republican, he served in President Obama's Council of Economic Advisors from 2008-2009, then served as a staffer for two Republican senators before Obama nominated him to run the SEC. If this isn't an example of skill, dedication and reputation besting political allegiance, nothing is. Too bad that's more the exception than the rule.