Sports Law Blog
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Wednesday, January 17, 2007
All Politics is Sports
Recurring theme warning: Once again, legal and political questions play out in sports. This is precisely why I write about sports--it actually gives a window into broader legal and political controversies.
The latest is the debate over § 502 of the 2005 USA PATRIOT ActRe-authorization, which alters the method of filling vacancies in the position of United States Attorneys. Ordinarily, the U.S. Attorney for a judicial district is appointed by the President with Senate confirmation. Under prior law, if a vacancy arose, the Attorney General appointed an interim successor who served until the President appointed (and the Senate confirmed) a permanent successor or for 120 days, whichever came first; if 120 days expired without a newly confirmed officer, the United States District Court for that district appointed an interim successor to serve until a replacement was confirmed. Section 502 changes this procedure by allowing the AG's interim appointee to serve "until the qualification" of a new U.S. Attorney appointed by the President and confirmed by Congress; no more 120-day limit. This means that the AG can appoint someone who can serve indefinitely, without the President ever having to put a new nominee before the now-Democratically controlled Senate.
This has drawn criticism from Senators Leahy, Feinstein, and Pryor, who have introduced legislation to restore the former process for filling vacancies. Last week, they sent a joint letter to Attorney General Alberto Gonzales, expressing concern that the White House and Department of Justice were pressuring/forcing U.S. Attorneys to resign (11 had resigned or been forced out since March 2006, including several in the past few days) to be replaced by potentially long-term fill-ins with no opportunity for the Senate to review their qualifications. Many of those forced out had investigated or were investigating corruption and misconduct by various GOP officials, raising a suspicion that the President is punishing local prosecutors. Gonzales will testify before the Senate Judiciary Committee tomorrow.
So, to quote Field of Dreams, what's it got to do with baseball?
One of the U.S. Attorneys who was asked/forced to resign today is Kevin V. Ryan, of the Northern District of California, where the BALCO steroids investigation is taking place. It was Ryan's office that convened a grand jury to investigate the leaks that provided the basis for the book Game of Shadows and to the contempt citation and prison sentences for authors Mark Fainaru-Wada and Lance Williams when they refused to reveal the source of the leaks (post here). It was Ryan's office that used subpoenas and search warrants to seize the records on old positive steroid tests on almost 100 Major League baseball players (posts here and here). And it was Ryan's office that has been investigating (although not moving forward on) perjury and other changes against Barry Bonds for his allegedly false grand-jury testimony in the BALCO case.
For this forum, I am agnostic as to the charges by Feinstein, et. al, that the firings are politically motivated or that the administration is punishing prosecutors for going after certain people. But if there is political motivation, I doubt it is in play here. I do not think Ryan's going after Barry Bonds and other baseball players for using steroids and/or lying about it is the sort of thing that would rouse Bush or Gonzales to punish a U.S. Attorney. Nor do I think they would get moved to act against Ryan for seeking to put journalists in jail for protecting sources.
Still, one of Bonds' lawyers was quoted as saying that the interim U.S. Attorney appointed by Gonzales would likely "throw in the towel" on the Bonds investigation and that a capable, ethical prosecutor will stop "tarnishing" the image of the office by chasing Bonds.