Politics skirted to pick nominee


ROD J. Rosenstein, the likely next U.S. attorney in Maryland, has a remarkable pedigree - state politicians appear to have had little to do with his selection.

Most U.S. attorneys owe their jobs to the sponsorship of one or more of their state's U.S. senators if they are in the same party as the president. Otherwise, the White House usually turns to the governor.

But not this time in Maryland. Though the country has a Republican president and the state has a Republican governor, this selection seemed to come straight from the Justice Department in Washington. And that has some observers concerned.

"I think that Rod is a wonderful candidate," said Maryland Court of Appeals Judge Lynne A. Battaglia, who hired Rosenstein when she served as Maryland's U.S. attorney in the 1990s. "But I'm hopeful that the Department of Justice will not be taking over the appointment of U.S. attorneys in this administration or any succeeding one."

"Independence is so important. You don't want to be at the beck and call of the department," she continued.

The apparent reason for the Justice Department's shunning of politics: the controversial behavior of Rosenstein's predecessor, Thomas DiBiagio, who was sharply criticized by Justice Department officials after a memo he wrote ordering his staff to produce three front-page indictments by year's end was leaked to the media.

Justice officials told the prosecutor that all future public corruption investigations would need their approval. Soon after, they visited DiBiagio's offices and interviewed staff members about their boss' leadership.

By December, DiBiagio announced he would leave. He wasn't the only loser.

When it came time to pick a successor, Gov. Robert L. Ehrlich Jr., who had been close to DiBiagio and championed his appointment, was not consulted until the selection process was all but done, according to the governor's aides.

Rosenstein, who served briefly as an assistant U.S. attorney in Maryland in the 1990s, appears to be the pick of the Justice Department, where he currently works. He lives in Bethesda.

Rosenstein, who has not yet taken over the office, declined to be interviewed for this article. A Justice Department spokeswoman said no one was available to comment.

The role of U.S. attorney has been described as one of the most powerful in the federal criminal justice system. In Maryland, the officeholder earns $140,300 a year to oversee a department of 70 attorneys and an equal number of support staff working out of Baltimore and Greenbelt.

The office can bring wide-ranging indictments, pursue complex prosecutions and assemble legions of agents from the FBI, Drug Enforcement Administration and other federal law-enforcement agencies whose resources eclipse those on the local and state levels.

Observers, including several former U.S. attorneys, said the selection process in Maryland was unusual but not wholly unexpected given the department's unhappiness with DiBiagio.

The Justice Department has intervened in the past when a U.S. attorney was deemed too political.

Peter F. Vaira stepped into the role of U.S. attorney in Philadelphia when Griffin Bell, President Jimmy Carter's attorney general, believed that the office needed a leader independent of local political pressures.

At the time, Bell also argued for the merit selection of all U.S. attorneys, an idea that developed informally in some states but never caught on nationwide. For his part, Vaira, who made his name investigating organized crime and in the Abscam public corruption prosecutions, never became a convert to that method.

"I never really believed in them," Vaira said of merit selection panels. "I don't give them much credit. The senator pretty much selects who he wants anyway."

With a Republican in the White House, Maryland's two Democratic senators have been essentially boxed out of the selection process, though they will vote on the nomination.

The Justice officials' concerns about DiBiagio's leadership were also apparent in their selection of an interim leader for the Maryland office.

Instead of choosing the office's first deputy or top criminal prosecutor, they picked Allen F. Loucks, a longtime civil attorney in the office who had been far removed from its most controversial cases.

With Rosenstein, the Justice Department chose one of its own. The 40-year-old serves as the principal deputy assistant attorney general for the Justice Department's tax division.

Supporters are quick to point out that he is widely regarded as an immensely talented trial attorney with the right Republican resume, including a stint as a federal prosecutor in Maryland and time working for former independent counsel Kenneth W. Starr on the Whitewater investigation.

Any sense that Rosenstein might be beholden to the Justice Department could be resented by those in the jurisdiction he serves, warned the president-elect of the National Association of Former United States Attorneys.

"You don't want to tell local people that you could not find a fine-minded, competent attorney from the local bar," said James S. Brady, who served as a U.S. attorney in the western district of Michigan in the 1970s. "You are part of the Department of Justice, but you want to make sure that the local people respect and accept the decisions you have to make because they're often controversial."

By policy, the attorney general already has significant control over a range of choices individual U.S. attorneys can make, regardless of how they are selected. In all cases where the death penalty could be sought, the Justice Department has the final say. The nation's 93 top federal prosecutors must also get permission before they obtain a wiretap, subpoena a reporter or probe the activities of a lawyer where questions could be raised about attorney-client privilege.

In 2003, then-Attorney General John Ashcroft issued a new edict that critics said made it tougher for U.S. attorneys to sign off on plea bargains. Ashcroft said federal prosecutors around the country would need to seek the most serious charge in any criminal indictment before striking a deal. At the time, many decried the loss of discretion by local U.S. attorneys.

Still, experienced U.S. attorneys said that once in office, they easily remained independent of whatever patrons, bureaucratic or political, helped get them there.

"It would be very nice, but you're never going to get away from the political stuff in the process," Vaira said. "I will say that the system does work because senators do take it seriously and the exceptions to that process are rare."

He added that the Justice Department "could try to play a larger role, but it will never happen. Based on our balance of power, senators still have power and it's not going to change."

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