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01.16.09

Obama Should Clean House at Justice

Bush took firing U.S. Attorneys to a whole new level so it would be poetic justice if President Obama purged the DoJ.

It should be one of the earliest and easiest decisions for President Obama. But don't count on it.

Next week, the new president should immediately ask all 93 U.S. attorneys, the top federal prosecutors in the country, to resign. If they refuse, fire them. Many of those prosecutors will have been honest, hardworking, apolitical public servants. And yet they should still get the boot.

What? Isn't that to repeat the partisan sins of Karl Rove and Alberto Gonzalez improperly seeking to stack the legal decks by firing U.S. Attorneys whose politics they don't appreciate? Isn't it precisely the sort of politicization of the Justice Department that people like me decried for months? Nope. It's the remedy.

Just because the Justice Department became "Bush League," doesn’t mean Obama has to start out in the legal minors.

After eight years of making obscenity and adult pornography the Justice department priority at the expense of pursuing hardened criminals, it's time to redirect and thoroughly disinfect the tattered department. Attorney General nominee Eric Holder had this to say about the DoJ a year ago: "There is a crisis of confidence that the nation has with regard to the department." Okay, so why not start anew when he takes charge?

It's hardly radical to suggest that Obama replace these political appointees. Bill Clinton did it. So did Bush. But it's also not even remotely hypocritical to recognize the basic difference between the Bush team firing eight U.S. Attorneys because they had the audacity to retain their independence and refused to allow the administration to manipulate them, and a new President making a broad decision to name all new political appointees to new terms. One is corrupt, the other is, well, politics. (Assuming there is such a distinction at all.)

The National Association of Assistant U.S. Attorneys, which represents 5300 of some of the smartest and best young lawyers in the nation, is urging Obama not to fire the bosses en masse. "We respectfully submit that, while this approach may be politically expedient, it's not consistent with the best interest of administration of the United States Attorney's offices and the advancement of their mission." Politically expedient? Explosive is more like it. Obama would be blasted from both sides if he forced out certain high profile, popular U.S. Attorneys like Patrick Fitzgerald of Chicago who is currently prosecuting Illinois Governor Rod Blagojevich. In fact, to stem any potential criticism Obama has already indicated that he will keep Fitzgerald.

Furthermore, the "administration" of the office, and the "advancement" of an amorphous "mission," while admirable goals, should not frighten Obama into submission. Cleaning house now sends a clear message both symbolic and practical about the real mission—a newfound commitment to the apolitical administration of justice by the most qualified lawyers. Bipartisanship need not be a casualty either. Refuse to accept Fitzgerald's resignation. Encourage some other top Republicans to apply. Convince former Bush Deputy Attorney General James Comey, an honest and staunch Republican forced out because he challenged the administration, to return. Who says a clean slate need be synonymous with appointing only Democrats?

Others have suggested that U.S. attorneys handling certain high profile cases, particularly political ones, should complete those cases to avoid the appearance of impropriety. Maybe. But most important, this new administration should not refuse to act for fear some might unjustly compare them to Gonzo's gang. Just because the Justice Department became "Bush League," doesn’t mean Obama has to start out in the legal minors.

As for those fearless advocates kicked to the curb? Shed no tears, even in this economic environment they will be quickly snapped up by law firms or businesses seeking to pay them many multiples of their comparatively paltry government salaries (and some of them won't be worth it).

So with all of this in mind, how would Obama position this sort of "radical" move? Ummm, maybe something like, "change you can believe in"?

Dan Abrams is the CEO of Abrams Research, an attorney, and the Chief Legal Analyst for NBC News and MSNBC. He launched Abrams Research in November 2008 and is now an outside consultant to NBC.