Next week is the second anniversary of the death of Aaron Swartz, who committed suicide amid an unjustifiable prosecution led by U.S. Attorney Carmen Ortiz, a prosecution that at best was based on a complete misunderstanding of how computers work. Two years ago, a petition on the White House’s “We The People” site made a straightforward request: “Remove United States District Attorney Carmen Ortiz from office for overreach in the case of Aaron Swartz.”
U.S. Attorneys are appointed by the President and confirmed by the Senate. U.S. Attorneys, however, are removed at the sole discretion of the President. As the Federal Judicial Center says, “In 1820 Congress prescribed a term of four years for the attorneys, although it provided for their removal at the pleasure of the President.” The current statute is 28 U.S. § 541(c), which says only: “Each United States attorney is subject to removal by the President.”
That is, the President is the one and only person in the world who can remove a United States attorney, and he does so at his sole discretion. The buck stops with him.
Yesterday, the White House finally responded to the “We The People” petition calling for Ortiz’s removal from office in a manner that would be laughable if it wasn’t so insulting and troubling:
As to the specific personnel-related requests raised in your petitions, our response must be limited. Consistent with the terms we laid out when we began We the People, we will not address agency personnel matters in a petition response, because we do not believe this is the appropriate forum in which to do so.
(Link in original.) The legal term for the White House’s response is “bullshit.”
The removal of a U.S. Attorney is not a “personnel-related request.” No one is asking the President to reach into the federal bureaucracy and start meddling with civil servants. The selection and oversight of U.S. Attorneys has been for centuries one of the most important jobs of the President. Those U.S. Attorneys have “more control over life, liberty, and reputation than any other person in America.” The President is the only person with any power over them, because the President alone decides if they can remain in office. The appointment of U.S. Attorneys is no more a “personnel-related” issue than the appointment of a Cabinet Secretary is a “personnel-related” issue: the “person” chosen to fulfill that role is part and parcel of the President’s policy.
The insulting reference to the “terms” of We the People makes the problem even worse. No one seriously believes some silly website rules could trump the President’s obligation to be honest with the public about the way his appointees perform their jobs. Yet, even that hollow defense fails: those terms say nothing at all about “personnel” matters being irrelevant — but the terms do say “the limited purpose of the We the People platform” is “to allow individuals to petition the Administration to take action on a range of issues — to address a problem, support or oppose a proposal, or otherwise change or continue federal government policy or actions.”
Ortiz’s continued appointment isn’t even like a “federal government policy or action,” the bulk of which involve Congressional statutes and agency rulemaking procedures over which the President has either no control or limited control. It’s a matter of the President’s sole discretion. He could fire her tomorrow for any reason or no reason at all — but he feels the people’s complaints do not even warrant a genuine response, much less action.
The White House’s non-answer to the petition suggests that not one person in the White House was able to justify her continued appointment. Not exactly a ringing endorsement, is it?
Unsurprisingly, Ortiz’s poor performance has continued, as right now she’s throwing considerable prosecutorial resources towards the trial of Dzhokhar Tsarnaev, who apparently offered to plead guilty in exchange for life-without-parole, which is what happened with Sept. 11 conspirator Zacarias Moussaoui, shoe-bomber Richard Reid and Unabomber Ted Kaczynski. While the content of the negotiations is confidential, it has been reported that Ortiz was overseeing it and there is no question that it was a failure. There was no good reason to turn down that offer, which would have provided closure (giving all of us a reprieve from seeing Ortiz’s name in the press) and would have ended the case.
At what point will the President explain to us why we shouldn’t just assume Ortiz is looking more for the spotlight than for justice? Or should we just assume that the President is perfectly comfortable with Ortiz’s actions in office?