Brooklyn U.S. Attorney Robert Capers faces replacement speculation amid White House displeasure on Muslim travel ban court cases
By LOUIS FLORES
One day after a report in Newsday floated names of candidates to potentially replace U.S. Attorney Robert Capers, even though U.S. Attorney Capers remains in office, a report in The New York Daily News highlighted White House efforts to dictate legal strategy to the top Federal prosecutor in Brooklyn in the first, contentious court case involving President Donald Trump's Muslim travel ban. The White House action to dictate legal strategy to U.S. Attorney Capers was reportedly taken by presidential advisor Stephen Miller, according to the report in The New York Daily News. Ultimately, the Federal prosecutors, who argued in defense of President Trump's Muslim travel ban, lost that Court case, as did other teams of Federal attorneys similarly tasked in other jurisdictions. Those legal set-backs have reportedly embarrassed President Trump and supporters of the Muslim travel ban. Mr. Miller has been a controversial figure at the side of President Donald Trump since his presidential campaign, according to a report published by The Washington Post, over his views about race, gender, and immigration.
It is not known how the Newsday report presumed that U.S. Attorney Capers "surely is not staying on." As recently as three days ago, U.S. Attorney Capers was being honored by District Attorney Richard Brown (D-Queens). Past requests made by Progress Queens to the press office of U.S. Attorney Capers about his future plans have never been directly answered. (The press office for U.S. Attorney Capers declined to answer a request made on Sunday by Progress Queens for information for this report.) A request for information made to a press office for President Trump was not immediately answered.
If U.S. Attorney Capers is not vacating his post voluntarily, then the only way President Trump can be reportedly considering replacements would be for President Trump to ask that U.S. Attorney Capers step down from his office. Since U.S. Attorneys are political appointments made by the President and confirmed by the Senate, a President has discretion to remove a U.S. Attorney from office. However, that discretion is not absolute, and a removal can be made when the President believes it will serve the "public good." See Parsons v. United States, 167 U.S. 324, 343 (1897).
As reported by Progress Queens, the office of U.S. Attorney Capers had been scaling up corruption prosecutions of significant Government officials, including on Long Island, one of a few conservative enclaves in the otherwise "Blue State" of New York. The Progress Queens report noted that, even as the work done by the career prosecutors in the office of U.S. Attorney Capers had appeared to reach parity with the caliber and scope of the work done by the career prosecutors in the much more visible and aggressive office of U.S. Attorney Preet Bharara, the U.S. Attorney's Office headed by U.S. Attorney Capers had, at times, acted under heavy influence from then-U.S. Attorney General Loretta Lynch, creating a paradox. If the Trump administration is retaliating against U.S. Attorney Capers over the Muslim travel ban's legal set back in U.S. District Court in Brooklyn, President Trump may be overlooking how U.S. Attorney Capers has otherwise managed his office in accordance with an ideology that, at times, matches the political philosophy expressed by President Trump. At the same time when President Trump has expressed a pro-police political agenda, U.S. Attorney Capers has been slow to take any action on the civil rights investigation in the wrongful, police officer-involved homicide of Eric Garner until U.S. Attorney Capers' office reportedly took direction from the DOJ. If President Trump was looking for a U.S. Attorney open to taking direction from the DOJ, then U.S. Attorney Capers had already demonstrated that he was willing to take direction.
Is race an unreported factor ?
During President Trump's 2016 campaign, he and his surrogates invoked issues of race and religion to reportedly attract voters. In a report published by CNN, it was noted that the manner by which President Trump spoke as a candidate appealed to bigotry, according to the views of 59 per cent. of respondents to a Gallup poll. These worldviews are now ascendant in the Nation's capital. The Nation's top law enforcement official is U.S. Attorney General Jefferson Sessions III, who faced opposition during his recent confirmation hearings due to his record, including official acts he has taken to oppose the free exercise of voting rights by Blacks.
Despite U.S. Attorney Capers' refusal to bring some civil rights cases in his jurisdiction, his office has negotiated settlements for violations of environmental laws. The U.S. Attorney's Office headed by U.S. Attorney Capers has also applied to join a civil lawsuit over alleged voting rights violations. It is not known why President Trump or Attorney General Sessions would seek to remove U.S. Attorney Capers from office. To the extent that the career prosecutors reporting to U.S. Attorney Capers undertook investigations or prosecutions that were contrary to the political ideology of either President Trump or U.S. Attorney General Sessions, the removal of U.S. Attorney Capers solely for political reasons would not serve the "public good." As such, such a removal solely for political purposes would be impermissible, even under the discretion given to President Trump to determine leadership at the DOJ. Such a conclusion, generally, was a finding made in a 2008 DOJ investigatory report about the dismissal by the administration of George W. Bush of several U.S. Attorneys. See Office of the Inspector General and Office of Professional Responsibility, An Investigation into the Removal of Nine U.S. Attorneys in 2006, U.S. Department of Justice (Sept. 2008), https://oig.justice.gov/special/s0809a/final.pdf. Despite the prohibition against dismissal of senior DOJ officials for purely political purposes, President Trump recently fired then-Acting U.S. Attorney General Sally Yates for issuing legal guidance against defending the Muslim travel ban.
It is not known if other factors, such as U.S. Attorney Capers' race is an issue. None of the five potential candidates named in the Newsday report -- Seth DuCharme, Steven Losquadro, Christopher McGrath, Joan Illuzzi, and Marc Mukasey -- are Black.
Prior to the issuance of the 2008 DOJ report about the controversial firings of U.S. Attorneys, U.S. Sen. Charles Schumer (D-New York), as chair of the Senate Subcommittee on Administrative Oversight and the Courts, seized on the issue during hearings of the Senate Judiciary Committee to grill Bush administration officials about the firings. Assisting U.S. Sen. Schumer was his chief counsel at the time, Preet Bharara, who is now U.S. Attorney in Manhattan. During an interview for a profile published by The New Yorker, U.S. Attorney Bharara spoke about the role he played in the process that served as a check on administration attempts to subvert the autonomy and independence of the DOJ. During a January 2015 speech at New York Law School, U.S. Attorney Bharara separately and generally spoke about the "absolute independence" needed by Federal prosecutors to conduct "sensitive" investigations and taking up "hard cases." The press office of U.S. Attorney Bharara did not answer several advance questions submitted by Progress Queens for this report. But on Monday, U.S. Attorney Bharara is scheduled to deliver a morning address at a gathering of the Association of Towns of the State of New York at the New York Marriot Marquis.
- Federal prosecutors in Brooklyn may be called upon to defend Trump's Executive Order on Muslim travel ban [Progress Queens]
- Trump mum if he will keep Brooklyn U.S. Attorney Robert Capers in office [Progress Queens]
- In waning weeks as Attorney General, Loretta Lynch asserts more control over Federal prosecutors in New York [Progress Queens]