It all sounds as current as tomorrow’s headlines: a U.S. attorney is fired, he goes public to defend his reputation, the President knows more about the forced exit of the lawman than previously claimed, and the Justice Department as well as the White House are soon under fire from the media and Capitol Hill.
The year was 1978 and the U.S. attorney forced out of his job was David Marston. Appointed by President Ford as the top federal lawman In Philadelphia, Marston had racked up convictions of political leaders of both parties in Pennsylvania. After a year under Jimmy Carter, however, Marston was abruptly removed. “Stunned” is how the young, 35-year-old prosecutor described his removal, as it came right after his successful prosecution of a powerful state senator on racketeering charges.
Marston went to the press, and President Carter insisted to reporters that he didn’t become familiar with the case “until it became highly publicized.” But during a subsequent exchange with reporters, Carter revealed he knew enough about Marston to say he was a “last-minute” Ford appointee, that the Philadelphian “was not a practicing attorney, had never had any prosecuting experience, and. . .that he had a very heavy commitment to calling press conferences.” It turned out, according to Page One story in the Philadelphia Inquirer, that Attorney General Griffin Bell had secretly set up a selection panel of five lawyers to secure a replacement for Marston. Bell established the panel after assuring Rep. Joshua Eilberg (D.-Pa.), himself under a Justice Department investigation, that Marston would go.
Familiar? Is the current controversy surrounding the Bush Administration’s firing of eight U.S. Attorneys a “remake” of the nationally-reported “Marston affair” of 29 years ago?
Hardly - at least that’s what the star player in the ’78 drama told me.
“I have been following the current story and it’s more different than similar to mine,” David Marston, now 64 and in private practice in Philadelphia, told me, citing “two things that happened.”
First, he recalled, Carter as a candidate in 1976 had promised “he would appoint and retain U.S. attorneys solely on merit. This was not just something he said once but repeated on the campaign trail numerous times. It resonated because it was after Watergate.” (Indeed, Carter told the Democratic National Convention’s platform committee on June 16, 1976: “The Democratic Party must commit itself to steps to prevent many of the abuses of recent years. All federal judges and prosecutors should be appointed strictly on the basis of merit, without any consideration of political aspects or influence.”)
“President Bush has never promised this,” observed Marston, underscoring a difference between the controversies of today and 1978. He went on to say he agreed with an article by law professor John Yoo in the Wall Street Journal (March 22, 2007) that “presidents need to have their own people in place in order to promote a consistent national agenda” and that U.S. Attorneys should serve at the pleasure of the President.
The premier difference between then and now, Marston pointed out, was that in 1978, Rep. Eilberg was under investigation from Marston’s office and actually called up President Carter on November 4, 1977 demanding Marston’s ouster. Carter, in turn, called Atty. Gen. Bell and told him to “hurry up” on replacing the holdover federal prosecutor. Two Justice Department officials later claimed that an internal investigation showed that the President was unaware Eilberg was under investigation when he spoke to the congressman on the phone - leading columnist Pat Buchanan to liken the Justice Department probe to Tonto doing a full-field investigation of the Lone Ranger.
“There is nothing today like the phone call from Eilberg to Carter,” said Marston, contrasting an obviously partisan move by the Carter Justice Department to Bush’s Justice Department launching a highly publiclized raid on the office “of my congressman, [Republican] Curt Weldon, two weeks before the election and probably causing his defeat and sending [Republican Reps.] Duke Cunningham (Calif.) and Bob Ney (Ohio) to prison on corruption charges.”
Prosecuting across party lines was precisely what Marston did as U.S. attorney - pursuing the former Republican chairman of Chester County as well as Democratic Representatives Eilberg and Daniel Flood and two powerful Democratic legislators.
What did he think of the across-the-board removal of the eight U.S. attorneys by the Bush Justice Department? “I can’t imagine a more Keystone Kops approach,” said Marston, “It was ham-handed, all right.” He also said it was “cavalier” of New Mexico Republican Sen. Pete Domenici and Rep. Heather Wilson to later-fired U.S. Attorney David Iglesias.
But he emphasized that, in sharp contrast to the circumstances surrounding his removal in 1978, “there is no evidence of any partisanship here. The facts don’t support it.”
Marston believes that the White House’s decision to keep Deputy Chief of Staff Karl Rove and Counsel Harriett Miers from testifying under oath before Congress will hold up. In his words, “It will be difficult to get a court to over-rule executive privilege and force testimony short of evidence of criminal conduct. So far, I haven’t seen any evidence of that.”
