The Case of the Missing Prosecutors

Texas holds the dubious distinction of having more unfilled U.S. Attorney positions than any other state — and that isn’t going to change soon.

Currently, none of the four Texas districts have "presidentially confirmed" federal prosecutors, who are responsible for enforcing federal laws. Last week, John B. Stevens, a state district judge in Beaumont who was Barack Obama's only nominee in Texas, withdrew his name from consideration, citing the protracted confirmation process.

The continuing vacancies owe partly to skirmishing between the state’s GOP senators and the Democratic House delegation over who wields the power to recommend nominees, and partly to a cautious White House with a recently turned-over general counsel and a heavy legislative agenda. In contrast, previous administrations typically had their Texas selections installed a little over a year into their terms.

It’s not as if the posts stand vacant. Though all of George W. Bush’s U.S. attorneys have long since resigned, interim prosecutors are serving in their places in each of the Northern, Southern, Eastern and Western districts. But it does mean that Texas risks being left out of the current administration’s inner circle on federal justice issues. How much that matters depends on who you ask.  

"If you aren't putting the president's players and senators’ players in, it's almost as if you aren't truly part of the team," says Paul Coggins, a U.S. attorney in the Clinton administration who serves on the senators’ board that screens possible nominees. “Acting U.S. attorneys will generally carry on the policies of the predecessor as opposed to adopting the policies of the new administration."

Some say a district can be left to wander in prosecutorial purgatory, with no clear direction as to what initiatives to pursue or how long it will be before having to adjust to new leadership. They say a leader without the presidential imprimatur can hinder an office’s chances of receiving highly competitive grant money for task forces or new initiatives.

“There is a massive national agenda that the Democrats in Congress and the president have been pursuing that remains untapped and unimplemented” in Texas, says Chuck Herring, a Austin-based lawyer who has followed the nomination process closely. “Because without an appointed leader who has some sense of authority, as opposed to being simply a placeholder, you aren't going to have someone who is willing to be aggressive and exercise policy command decisions to transform this sort of stuck-in-the-mud, inertial approach into the issues of the day and the nation.”

Others argue that not having a presidentially confirmed U.S. attorney doesn’t put a serious kink in the day-to-day operations. That’s because a seasoned corps of assistant U.S. attorneys — who usually do not change with administrations — lend the office continuity.

And Texas’ U.S. attorneys have historically focused their investigations in four areas: drug trafficking, white-collar crime, child pornography and immigration. That strong tradition makes it easy for an acting attorney to continue along the same lines.

James Jacks, the acting U.S. attorney in Texas' Northern District, says “the calls still come in and the cases still get worked” just as well without the presence of an appointed attorney. “Within our district," he says, "the lawyers that are serving in the position of interim or acting or court-appointed are doing the same work that was going on when there was a presidentially appointed, Senate-confirmed U.S. attorney in office.”

Of course, the last presidentially appointed, Senate-confirmed U.S. attorney in the Northern District was appointed by Bush, not Barack Obama, which speaks to Coggins’ point about acting attorneys tending to carry on the policies of their predecessors. But Jacks says that doesn’t make a difference: “If there are initiatives from Washington, they are going to be passed down to every U.S. attorney’s office, and you seek to take care of those initiatives and allocate those resources.”

Still, except in the case of a directive from the Justice Department, acting U.S. attorneys usually won’t proactively tackle issues outside the bounds of what their offices have considered in the past. For Herring, that means key issues of the Obama administration, including health insurance fraud and environmental enforcement, will go untouched, as they did during the Bush administration.

So what are the chances of the state getting a new nominee any time soon? The next best chance is the Western District’s Michael McCrum. According to a Senate staffer familiar with the process, his nomination is “forthcoming.” Along with Stevens, McCrum (who was also recommended by the Democratic House delegation) was on the list of nominees the senators sent to the White House in early October. And, along with Stevens, he was the only candidate on the list who was also approved by the Democrats.

Once he secures the nomination, McCrum will have to endure the Senate confirmation process, which could last several months and could still result in his losing the nomination. The senators and the House delegation have been unable to reach consensus on candidates in either the Northern and Southern districts and now, with Steven’s withdrawal, the Eastern, meaning both factions may have to go back to the drawing board.

As time goes by, however, a U.S. attorney post becomes less attractive to possible candidates. "The deeper you go into an administration, the harder it is to get people to disrupt their lives, shut down their practices for maybe a year or two as U.S. attorneys, and say the Dems don't win” the next presidential election, Coggins says. “Then the person who has accepted the job for a year or two is back out on the streets — but they've got a one-year ban on lobbying their office and a lifetime ban on handling anything that was in the office, so it's a disruption to the practice for people to take the position."

U.S. Rep. Lloyd Doggett, D-Austin, who’s been active in the consideration of U.S. attorney candidates, counts Stevens’ loss as a causality of the deferred process: “The effect of the delay is that we lost a highly skilled and experienced prosecutor to do the job of support for our law enforcement.”

And he squarely lays the blame for the delay at the feet of the White House, saying he sees “a troubling lack of priority to seeing that the prosecution positions are filled.”

“I have expressed my concern as recently as yesterday, in a face-to-face meeting with Vice President Biden, and have voiced it repeatedly to the White House,” Doggett says. “I am hopeful that the only good thing that will come out of Judge Stevens deciding to withdraw is that the White House will raise this on the crowded agenda … and we’ll see some movement on these appointments.”

But there’s a storm brewing that threatens to dampen any momentum Doggett might prompt from the White House: the impending battle this summer over who will replace John Paul Stevens on the U.S. Supreme Court, which is likely to consume much of the administration’s political capital. That could push Texas into two years without presidentially confirmed federal prosecutors.

The net result of all that, Herring says, is that “we don't have anything happening [in the state] that is exciting, affirmative and moving forward."