Prosecutors owe loyalty to the public

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Prosecutors owe loyalty to the public

By Patrick M. Collins, a partner with the law firm of Perkins Coie LLP (the position as published has been corrected here and in a subsequent reference in this text)
Published April 17, 2007

This story contains corrected material, published April 18, 2007

When Atty. Gen. Alberto Gonzales testifies before the Senate Judiciary Committee to explain his role in the firing of eight U.S. attorneys, it is important to keep in mind that what is really at stake goes far beyond Gonzales' own fate as the country's top law official. At root, this inquiry poses a fundamental question, one that every attorney general in every presidential administration must squarely confront: To whom, or to what interests, does a U.S. attorney -- or, for that matter, any prosecutor -- owe professional loyalty?

This is a question that needs to be discussed openly throughout the hearing process, for all parties to the justice system -- be they subjects of investigations, victims, prosecutors or defense lawyers, and whether they reside in Chicago, New Mexico or Durham, N.C. -- are entitled to know exactly how the Department of Justice leadership would answer the question.

The "loyalty" question is not some abstract concept about politics and ideology. Rather, it is a question with important practical consequences that are tied to the central role of prosecutors in our justice system. Prosecutors alone have the power to present an indictment to a grand jury, an awesome power that, once executed, typically changes the course of lives forever.

Further, given that law enforcement agencies have limited resources, the way in which prosecutors and agencies such as the FBI allocate those resources goes a long way in determining which types of offenses and offenders will have to face the justice system.

Finally, an effective justice system requires the support and confidence of the community at large. If the public perceives that prosecutions are influenced by partisan affiliations or political agendas, it will quickly -- and appropriately -- lose confidence in its prosecutors. In recent published comments, Gonzales said, "aith and confidence in our justice system are more important than any one individual."

In e-mails and documents released in recent weeks, we have learned that certain high-ranking Justice officials, when considering particular top prosecutors to terminate and others to replace them, answered the loyalty question in partisan political terms. Distressingly, these Justice officials appear to have placed a premium on installing prosecutors with established partisan political resumes.

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