Kenneth Polite Credit: Liskow & Lewis

“To suggest that these folks do not know or understand the process by which they are appointed, confirmed and retained is to suggest that they are naïve.”  Sen. John Cornyn, R-Texas

A year ago, reliable sources told me that lawyer Kenneth Polite Jr. would be the next U.S. Attorney for the New Orleans area. The prediction seemed alarmingly premature. Jim Letten, the then-incumbent federal prosecutor, looked pretty secure in his position. Granted, Letten’s reputation had taken a rare hit in the spring of 2012, after news broke that federal prosecutor Sal Perricone had anonymously written inappropriate comments on But Perricone soon retired and Letten dismissed him as a lone wolf. He strongly denied that others in his office had dabbled in similar online hijinks.

Still, talk about Polite’s prospects circulated in the local legal community. It troubled me. Not because Polite was the subject — on the contrary, I’d once met him and admired the way he resolved a dispute under difficult circumstances. But a U.S. Attorney holds a terribly powerful office. When someone, anyone, is regarded as a shoo-in for such an important position — before there’s even a vacancy to fill — it raises troubling questions about the subsequent “selection” process. Namely: Is it all a political charade to cover a pre-determined choice, and who’s pulling the strings?

The information about Polite haunted me because I knew that circumstances surrounding U.S. Attorney appointments in this district often verge on the bizarre.

So, in October 2012, when Letten seemed most likely to retain his office for another term, I went out on a limb at the Slabbed blog comment forum and suggested that Polite had the inside track on the job. Perhaps, I thought, re-elected President Barack Obama would exercise his power to remove Letten (a Bush administration holdover) and make his own appointment for Louisiana’s Eastern District. Or, maybe the online comment scandal would suddenly break wide open, I speculated. A month later, the latter possibility was realized in spectacular fashion when Letten acknowledged that longtime Assistant U.S. Attorney Jan Mann had also made anonymous online comments about federal targets, undercutting previous denials.

As the top Democrat in the state, U.S. Senator Mary Landrieu was in charge of recommending a replacement after Letten’s abrupt retirement last December. News reports characterized the field of potential candidates as wide open. In December Landrieu said she would forward the top three contenders to Obama, who would nominate one for Senate confirmation.

Landrieu ended up making only one recommendation: She claimed Polite had risen “quickly” to the top of an impressive field of candidates. My suspicion is that he was already the top dog from the get-go.

Now maybe it was pure coincidence that the rumors I had heard matched up with Landrieu’s  recommendation. But the history of U.S. Attorney selections — especially in this neck of the woods — should lead us to think otherwise. There’s another recent development that I think is telling. U.S. Attorney Donald J. Cazayoux Jr. recently retired as U.S. Attorney for Louisiana’s Middle District. According to The Advocate, Landrieu “plans to check with the Justice Department on whether the administration would prefer a recommendation of one person or several.” Why the confusion? Why not just recommend the “top” candidate as she did in the Eastern District?

Polite’s resume is impressive. In its endorsement, The Times-Picayune editors summarized his experience:

He is a New Orleans native, born in Charity Hospital, who earned his bachelor’s degree from Harvard University and graduated cum laude from Georgetown University Law Center.

After a clerkship at the Third Circuit Court of Appeals, he spent six years at the Skadden, Arps, Meagher & Flom firm in New York. He then served for three years as a federal prosecutor in the Southern District of New York, which is one of the most prestigious U.S. attorney offices in the nation.

Critics aren’t sold on Polite as clearly superior to all other candidates. They note that he is only 37, and fear he doesn’t possess the administrative experience to handle an office reeling from scandal. Indeed, more embarrassing disclosures appear to be on the way.

For example, on April 16 U.S. District Judge Kurt Engelhardt indicated that an independent probe of possible misconduct during the Letten era “might be ongoing for some time.” The Justice Department’s Office of Professional Responsibility has also investigated Letten’s office, though it’s unknown whether that probe has been completed.

Polite’s continued representation of Hendrikus Ton has also raised eyebrows. Ton is the owner of an oilfield-services company who pleaded guilty to conspiracy charges, and was ready to testify as a government witness that he participated in a payroll-fraud scheme with River Birch landfill executive Dominick Fazzio. However, after the online comment scandal widened the feds dropped the charges against Fazzio and abruptly ended the probe into River Birch “in the interest of justice.” This put Polite in the tricky position of essentially arguing against the competence of the office he had been picked to lead, in order to defend Ton. (Ton was ultimately sentenced to three years probation and had to pay $3.6 million in restitution.) One wonders whether Polite — given Ton’s River Birch connections and his own prospects of becoming U.S. Attorney — should have removed himself from the case.

Some may say this is nothing new. The U.S. Attorney’s Office has been a political plum for eons. That’s precisely the problem. Such powerful offices shouldn’t be subject to favoritism and murky personal allegiances. The history of U.S. Attorney selections places the public focus on the political motivations behind the appointment, instead of the qualifications of the candidate.

A March 4 article in The Louisiana Weekly extensively quotes New Orleans NAACP president Danatus King who sees a Landrieu family conspiracy behind Polite’s appointment:

[Mayor Mitch Landrieu] has reneged on his promise for constitutional policing by trying to vacate the consent decree. Mary is abdicating her public trust by trying to replace Jim Letten with a suntanned version of Jim Letten. Remember, Jim Letten was successfully retained by President Obama because of Mary Landrieu placing her political capital on the line for Jim. Sen. Landrieu’s attempt at only nominating Kenneth J. Polite Jr. for the post of U.S. attorney is a clear indication that she is up to the same tricks as her brother Mitch as they try to seize and maintain full control of New Orleans.

I can’t blame King for trying to parse the motives behind the recommendation. But I disagree with his assumption that backing Polite amounts to a tag-team power grab by the Landrieu siblings. I’m inclined to believe the Polite pick came from the top down, similar to how President  George H.W. Bush secretly lined up Harry Rosenberg to replace U.S. Attorney John Volz, over the objections of  Republican officials in the state.

In this case, I believe Attorney General Eric Holder told Mary Landrieu to recommend only one candidate and to make sure the name was Polite. As King noted, Landrieu had previously used up her political capital to retain Letten, a Republican. When Letten fell, Holder took the initiative.

Or at least that’s my theory. It’s based on a reading of the tea leaves as well as this November 2012 commentary from Slabbed blog which claims Polite’s likely connection to U.S. District Judge Brian Jackson, who was thought to be in line for the local U.S. Attorney spot in 2009. Key quote: “[Polite] must be very close to Judge Brian Jackson (see Liskow & Lewis connection) who would have had the job, but for the Landrieu/Letten politics. Jackson is very close to Holder, so if Main Justice [U.S. Department of Justice] is pushing Polite then it comes from that camp, and not Landrieu.”

No one will ever know the real answer, of course. It’s always assumed that politics factors into the U.S. Attorney selection “process,” but the key decisions are made in private. It’s a farce, and a disservice to the public as well as to potential nominees like Polite. The political nature of the appointment makes everything suspect.

For example, when the Bush administration directed then interim U.S. Attorney Jim Letten to “make urban areas safer,” were we to interpret that as code? Or, when Polite says he intends to focus the office on violent crime — is that his own preference — or Holder’s or Jackson’s?

Here’s my proposal on how to reform the system: U.S. Attorney candidates should come from outside the district and be chosen by lot. I envision each region compiling short lists of peer-approved candidates from each party. When a vacancy opens in another region, a lottery selects a candidate from all the lists to determine which “outsider” candidate fills the vacancy. It’s not a perfect solution. There are drawbacks — lack of familiarity with a new region being the most obvious. And even a random process wouldn’t eliminate all the politics, but it would be a step in the right direction — certainly an improvement over the current charade.

I think the story of U.S. Senator Peter Fitzgerald is instructive on this point. The Illinois Republican defied the George W. Bush administration, as well as many top officials in his own party, in recruiting an impartial prosecutor to root out corruption in Gov. George Ryan’s office.

I’m not the only local who advocates hiring U.S. Attorneys from beyond the districts in which they will serve. Earlier this year W.C. Johnson, host of the local cable-access show “OurStory,” said: “New Orleans needs [a U.S. Attorney] from outside Louisiana who has a proven record of law and order yet compassion for the poor, black and ethnically cultured citizens of New Orleans.”

If the non-local idea doesn’t thrill you, that’s fine. But let’s find ways to make the current U.S. Attorney selection process less of a political charade.

Mark Moseley

Mark Moseley blogs at Your Right Hand Thief. Until mid 2014, Mark Moseley was The Lens' opinion writer, engagement specialist and coordinator for the Charter Schools Reporting Corps. After Katrina and...