“The scandal isn’t what’s illegal; it’s what’s legal.” That line, usually attributed to Michael Kinsley, has been repeated so often as to become a truism. But that doesn’t mean it’s not true, as the mild controversy swirling around Montana Sen. Max Baucus shows.

Baucus has been in the news lately because a woman who was on the list of three names he submitted for consideration as U.S. attorney in his home state turned out to be his girlfriend. Quickly, a meta-discussion emerged over just how big a scandal this was. (The predictably depressing cable TV response: Not so big, because the sex angle—no hookers, no cheating—was kind of weak.)

Really, though, the reason this hasn’t become an especially big story—besides the key fact that Baucus’s girlfriend, Melodee Hanes, withdrew from consideration and didn’t get the job—is that Baucus’s actions were unremarkable. As Charlie Savage reports in a solid story in today’s New York Times, federal prosecutor positions routinely go to people who are connected to U.S. senators. And that perfectly legal fact—which makes top public officials the patrons of individuals who are supposed to guarantee public integrity—is kind of scandalous.

The role of senators in vetting federal prosecutors has been described in earlier stories on the Baucus affair, but Savage offers a thorough explanation. He writes:

It is routine for United States attorneys to have strong ties to politicians, and the latest crop is no exception. Mr. Obama’s appointees include several former aides to their states’ senators, a former aide to Vice President Joseph R. Biden Jr., and the 34-year-old son of South Dakota’s senior Democrat, Senator Tim Johnson.

… [Melanie Sloan, the executive director of the nonprofit group Citizens for Responsibility and Ethics,] also called such ties common, noting that in 2001, President George W. Bush appointed the 28-year-old son of Strom Thurmond, then a South Carolina senator, to be a United States attorney despite his scant experience.

In addition to further details on those Obama appointees, we also get this bit of context:

Although in theory presidents may nominate anyone to be a United States attorney, in practice they have long consulted lawmakers because individual senators have sweeping authority to block nominees for positions in their states, a system that dates back to a dispute in 1789 over a Georgia port official.

As the system has evolved, senators have adopted varying procedures and degrees of self-restraint. Some have set up bipartisan advisory committees to vet potential nominees, but many others do their own interviewing. Some send the White House two or three recommendations for each position; others send just one.

So, basically, while some senators have taken it upon themselves to create safeguards, established custom holds that one of the best ways to become a U.S. attorney is by cultivating connections with a senator (romantic attachment not required).

Indeed, an Associated Press story today by Matthew Brown includes a nugget not in the NYT piece that suggests that’s the background for what happened here:

In Montana, Yellowstone County Attorney Dennis Paxinos described Hanes as an accomplished criminal prosecutor. Being named U.S. attorney “was the career path she was working on” since at least 2002, said Paxinos, a Republican and Hanes’ former boss.

That year Hanes left her deputy county attorney job to work on Baucus’ re-election campaign. The move into politics was based on the assumption that it could lead to the federal prosecutor’s job, according to Paxinos.


“I don’t think it was ever her intent to fall in love with a senator,” he said.

If she hadn’t, of course, no one would ever have taken notice of this story, even though Baucus and Hanes had a well-established political and professional relationship. The press can probably be faulted for its complicity in indifference to this ethical gray area—but some good reporting has, for the moment, brought it to the fore.

P.S. The AP story linked above notes that the initial revelation was prompted by inquiries from “a Washington, D.C.-based Web site,” but oddly doesn’t say which one. Kudos to WaPo’s Chris Cilizza, who name-checked Main Justice in his initial post on the story and linked to their item.

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Greg Marx is an adjunct lecturer at The Medill School and a facilitator with The OpEd Project. She served as an editorial board member, columnist, library director, and No. 2 in the features department of the Chicago Sun-Times.