Boldly (and Badly) Going Where no White House Has Gone Before

Douglas W. Kmiec, a law professor at Pepperdine and a former Justice Department official during the Reagan administration, has an interesting op-ed today in the Los Angeles Times entlted "In Defense of Gonzales." It is well worth reading. Kmiec argues that beleagued Attorney General Alberto R. Gonzales has "precedent and the Constitution on his side" when he testifies on April 17th before the Senate Judiciary Commitee. Why? Because, Kmiec argues, the law allows the President and the Attorney wide latitude in firing political appointees when they fail to meet policy objectives. Furthermore, he adds, there is no legal or political precedent for having an Attorney General who is independent from presidential direction.

Even if that is all true-- and Kmiec is a serious player among former federal officials-- it still does not explain why the current administration was willing to do last year-- fire eight U.S. Attorneys last year-- what no other administration has been willing to do. Kmiec's bosses at the Justice Department during the Reagan years never dismissed federal prosecutors on a major scale like this mid-term. And does anyone out there seriously think that Reagan, Deaver, Regan and Co. in the White House, or Ed Meese and Richard Thornburgh as Attorneys General, never wanted to fire a U.S. Attorney or two, or 10, because the latter weren't carrying the ideologicial water for the Reagan revolution? Same goes for George H.W. Bush. And Richard Nixon. And Bill Clinton, for that matter.

The current president, his political operatives in the White House, and the obedient Attorney General, surely then are not the first executive branch leaders to become disenchanted with the prosecutorial priorities. But they are the first group to actually try to do something about it in the middle of the term in circumstance we now know to be dubious, if not downright duplicitous. That is what makes this episode so extraordinary, so mportant, and so alarming. Just because, as Kmiec argues, the president (any president) may have the power to politically manipulate federal prosecutors the way the White House (any White House) politically manipulates everything else, doesn't mean that it is a bright idea, or right, or good for the nation. It isn't. And if you don't believe me believe the scores of past attorneys general and White House officials who refused to boldly go where the current gang has gone.

By Andrew Cohen |  March 31, 2007; 8:18 AM ET agag
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Look at Jackoffgate. Bush's actions were dubious, if not downright duplicitous. But that is not what makes this episode so extraordinary, so important, and so alarming. Yes, they abused their power over prosecutors to cover up Republican racketeering and persecute their political and business opponents. But abusing their power over prosecutors alone is not what makes this episode so extraordinary, so important, and so alarming. It is the underlying Republican Racketeering that is the looting of America. Abusing their power over prosecutors was just one of thousands of similar abuses of power that enabled them to conduct organized crime. But the organized crime itself is far more serious than the abuses of power which enable it. The Terrorist Surveillance Program may enable Duck Hunter Dick to assassinate liberals on a whim. But the assassinations themself should be more alarming than the abuses of power which enable them. The fact that prosecutors turned a blind eye to organized crime pales in comparison to the fact that someone was controlling organized crime.

Posted by: My Florida My Boehner | March 31, 2007 09:23 AM

Using a law professor from Pepperdine is like going directly to Ken Starr for a quote as he is the Dean of the law school at Pepperdine. By the way how come the Post has never written an article about Ken Starr hiring Justices Scalia and Alito to teach summer courses at Peperdine and then appearing in front of the court as a partisan attorney? I don't think Scalia or Scalia lite, Alito recused themselves from hearing the case. I guess the Post is to chicken to point that obvious conflict of interest out. But that is another subject. Quoting the LA times that has just been hijacked by right wingers of the Tribune co. as source for any article in the Post is like quoting from the Washington Times. Remember the Tribune has been getting it wrong sine declaring Dewey the victor in 48. Do your own home work. Of course this DOJ and Whitehouse have traveled paths that no other administration has traveled. This Bush administration is the most incompetent and corrupt administration in the history of the United States of America by far. The good news is we have only 22 months to go with them. The bad news is we have almost 22 months to go with them.

Posted by: Redman | March 31, 2007 09:23 AM

If there is one thing I have learned in observing the nefarious activities of this administration, there is no shortage of eggheads from conservative think tanks or ideologically rigid right wing scholars who will use any literary artifice or arcane linguistic legerdemain to justify the excessive politicization of virtually every function of the federal government on the part of this squalid White House. Does anyone out there honestly believe that this particular professor would be breaking such a sweat in making such tedious legal argument if this President were a democrat? Of course not. Where was Pepperdine when the Congress was hauling in Clinton's aides for dropping a cigarette on the White House Lawn? Well, one of their most luminous alumnis was none other than Kenneth Starr himself--the very prosecutor hauling in all of those Presidential aides for far less nefarious activity than what this truly smarmy President has done.

Posted by: Jaxas | March 31, 2007 09:51 AM

Kmiec brings heavy bias to his argument. All the loyal Bushies twist the allegedly impartial ground rules of governance to fit their political goals rather than serve the public. And that is the problem here. The public no longer trusts anything this highly secretive administration does. With his policies, his motives and his secrecy, Bush has abused rather than served the nation and its people. With Bush,this judiciary problem is one more instance in which politics trumps the law. If you want an honest, impartial view on this subject you should be consulting with Chuck Hagel, not Bush cronies. Hagel is a conservative and a republican. He loathes the egregious abuses of power that come from the White House and he is not afraid to broadcast his feelings. The Washington Post ought to follow his example and scream bloody murder over these same issues.

Posted by: Mark Pillar | March 31, 2007 09:52 AM

I just read your invitation to post a comment and I'm struck by the "even challenge washingtonpost.com's articles." Boy, how invested is the WP in the Bush era??? Good solutions come from challenging ideas and seeing how they work. I think you should get rid of the the "EVEN."

As for the perogatives of Bush and Gonzo, we have to keep focused on the main point: the fired attorneys were all in swing states with outstanding records. And they serve the United States of America and its people at the pleasure of the president. That is far far different than serving the president. We are entitled to question and conclude that these firings were wrong and pursue consequences for those involved.

Posted by: Pamela Fiore | March 31, 2007 10:01 AM

Monica Goodling went to one of these little rightwing law schools that justified such lawlessness, too, while purporting to be *Christian.* Now she*s hiding behind the 5th amendment because she*s too chicken to be held accountable for her own choices. I think Americans clearly understand what*s going on here, and all the gobbledegook obfuscating that is just flat delusional. Ms. Goodling*s choice of 5th amendment may well result in her being disbarred. Choices have consequences.

Posted by: | March 31, 2007 10:22 AM

Bill Clinton fired every US AG then serving for political reasons something that had never been done before.

Posted by: Ben LaGuer | March 31, 2007 10:32 AM

Did anybody mention that this is also the first time an administration firing federal prosecutors could replace them with no Congressional approval, thanks to the so-called Patriot Act?

Posted by: Floridian | March 31, 2007 10:40 AM

ben laguer - every president fires the sitting attorneys when they start their administration; Bush fired all of the attorneys that Clinton had in place when he took over. we are talking about firing attorneys who were put in place by the current sitting president who were not performing to the policy line they instituted. this is not the same thing as saying a new administration from another party fired the attorneys at the start of their first term.

Posted by: ed | March 31, 2007 10:45 AM

As Floridian correctly points out, the real issue here -- which keeps getting obscured -- is that not only were the US attorneys fired for political reasons, but their replacements (on an "interim" basis) were not subject to confirmation hearings in the Senate. I wonder how many of them would have been fired if the Bushies had had to convince the Senate to approve their successors. BTW, does anyone know how long these interim appointments are good for -- the remainder of Bush's term? It sounds even more open-ended than recess appointments.

Posted by: Nancy Jane Moore | March 31, 2007 11:17 AM

Redman, above, errs in thinking this is the most corrupt administration ever. There have been worse. I believe Pres. Bush believes in what he is doing because he believes that, generally, what is best for the Republican Party is ultimately what is best for the nation. I think such faith in the place of logic excuses all manner of grievances, in the eye of the aggressor. We have all been guilty of it from time to time, but never on such a grand scale, with such consequences...

Posted by: kbtoledo | March 31, 2007 11:18 AM

"The Thinker"
.
Perhaps we now know why the shrub failed to respond when he was told during that reading of "My Pet Goat" that our nation was under attack.
Under this guy and his cronies nothing gets done until the political commissars give the green light. He waited. What response brings us more control and power, he asked himself. What spin comes to mind?
What would George do if a toilet overflowed? Or perhaps it already has.

Posted by: craig johnson | March 31, 2007 11:19 AM

Nonsense!

On March 24, 1993, Janet Reno requested the resignation of ALL United States Attorneys. The Federal prosecutor of the District of Columbia went so far as to suggest that this was for the purposes of stalling an investigation into Clinton friend Dan Rostenkowski (the House Post Office Scandal). Rostenkowski was later indicted and forced to resign his House of Representative leadership positions.

What makes this case so different are three things:

1. The amendments to the USA Patriot Act which eliminated the requirement whereby new appointments were reviewed by Congress).

2. The fact that the White House and Gonzales repeatedly mislead the public about the reasons for the firings instead of simply arguing that it was their right to hire and fire who they pleased.

3. The timing of the firing which was not (as in the case of Reno) shortly after Gonzales took office (and, therefore, would have been more easily justified as a house cleaning), but was just after the Republicans were pummeled in the 2006 elections.

There is no doubt that this is one of the most incompetent administrations in the history of the United States (a fact made ever more significant by the length of time they have been in office and unprecedented use of overwhelming military force to achieve a political objective).

But this does not excuse playing with the facts in order to make things appear worse than they really are (as if that were possible).

Even more strange is the behavior of Goodling who appears, like Miers, to be little more than a lap dog for whomever appointed her.

This administration has taken loyalty above competence to new extremes.

Posted by: Sean McLinden, MD | March 31, 2007 11:23 AM

Kmiec's always struck me as a reflexive apologist for his sponsors' legal policies and positions, but, setting that aside, his position evokes from me a big "So what?"

Of course, political appointees may be commanded to execute policy priorities and fired if they don't, and some of that might actually have happened here with one or more of these USAs, The Lam and Yglesias firings, however, don't fit comfortably into that pigeon hole (and the Cummins firing seems admittedly to have been unrelated to competence). Suspicious circumstances accompany Lam's and Yglesias's firings, and Sampson did not shed light on them.

Posted by: Alan | March 31, 2007 11:29 AM

I would simply say that I concur with the article and the views expressed in posts 2 thru 5. -- The main thing undercutting Kmiec*s argument is the qualifiying criterion that he himself mentions: if they FAIL to perform or meet policy objectives. - There has been no evidence whatsoever that they were informed of failing to meet specific objectives by the AGs office prior to their firing. After the fact the WH tried to say it was because a couple did not bring voter fraud cases, but those potential cases were found to be without merit. All of these guys were good, if not excellent performers and were Bush appointees. AS previously noted, Kmiec*s argument is twisted and self serving and does not hold up under close scrutiny. -- Quality and integrity had nothing to do with these firings, and politics had everything to do with them.

Posted by: odin966 | March 31, 2007 11:29 AM

This post is typical of where administration apologists would like this discussion to take place, with all of the focus on the power of the president to replace attorneys at his whim. And why would it want the emphasis there? They prefer it because, while it is unseemly, unethical, and nearly unprecedented to fire sitting US attorneys for political reasons in the middle of a presidential term, it is *technically* legal. Articles like the one cited here want the focus to be on this point, because the *real* scandal is much more serious. It is becoming quite clear that the AG lied to congress. Whatever his motives for the firing were, this is simply unacceptable, which is why outrage with Gonzales crosses party lines. It also looks likely that the motive behind at least 2 of the firings was to affect the outcome investigations of Republicans (in California) and Democrats (in New Mexico) to produce results more consistent with administration political aims. This is obstruction of justice. So, which AG would Gonzales prefer to be, an over-politicized hatchet man for the president who has no respect for the office he holds or a justice-obstructing perjurer? The drum beat of 'pleasure of the president' quotes from the right answers the question. It should be obvious to the press as well.

Posted by: wharris | March 31, 2007 11:35 AM

Mr. Cohen, you wrote: **Kmiec is a serious player among former federal officials--**
No, he*s not. If you*ve ever watched him on the Lehrer Report you*d know instantly that he*s an off-the-scale rightwing nutcake. Citing Kmiec for anything is like citing the President of Iran on the Holocaust.

Posted by: Norrie Hoyt | March 31, 2007 11:38 AM

It would seem that Mr. Gonzales misled congress, but he is watching his words very carefully now, saying "I don't recall specifically." this isn't lying. Any parent or teacher knows it is fibbing to avoid telling a lie. But being AG, he has lost respect and will probably leave office as soon as the stink is farther away from the President. until then, we will hear cries of harassment "they are picking on me" from the Bushies.

Posted by: | March 31, 2007 11:46 AM

It appears to me that several of these USA's were fired for ENFORCING THE LAW. What the admin. wanted was NOT the law, i.e. prosecuting cases with little evidence. The green light for these firings came from the secretly inserted amendment to the patriot act that allowed the admin to appoint without confirmation by the COngress.

Posted by: jlafountain | March 31, 2007 12:27 PM

It*s not the option of the President to fire his US Attorneys that is the problem here. It*s the prevarication of the Attorney General in statements made to Congress that indicate his propensity to deceive, obfuscate, and re-direct blame to subordinates that has revealed his betrayal to level with Congress, let alone the American people.

Posted by: Victor Kelley | March 31, 2007 12:35 PM

I think you could get a college student to proofread your work for free in exchange for academic credit.

Posted by: | March 31, 2007 01:09 PM

Kmiec a serious player? Come on! Kmiec has all the independence of thought of Fred Barnes. They trot him out on NPR whenever they need a right wing zealot for "balance", and he never disappoints.

Posted by: Hexnut | March 31, 2007 01:33 PM

You're right Andrew Cohen I absolutely don't believe you for the simple reason your wrong.

The rest of this thread is lame name calling with left wing nuts calling Douglas Kmeic a right wing nut. It's beyond boring. And many of these posters just can't get their little brains around the fact that it does't matter if these prosecutors were good, bad or indifferent. They can be fired at any time without cause. This simple, objective fact really seems to piss alot of people off. But it's the law. If you don't like it change the law.

Posted by: Erick Black | March 31, 2007 01:44 PM

The big stink with this whole mess that isn't eing addressed as much, and that Kmick evades as much as possible in his text, is the big scandal isn't just in the firings, it is in the replacement process. He says that Carter's plan would have been unconstitutional because of the president's responsibility for the executive branch, but fails to note the constitutional requirement for advise and consent by the US senate, which has too often been ignored by this administration in other regards but in this case they wrote the law specifically to avoid it.

Right wing airheads may talk about Clinton and appointing new prosecutors at the beginning of his administration (ignoring that it was common practice, if not to do it with every single one), drawing a nice distraction away from the central problem here. The firings are troublesome (they are unprecedented and the probable cause for it- partisan politics, not government policy) but it's the appointment of new prosecuters, without confirmation, that is the most troubling part.

The statute was written into the PATRIOT act for the event of a national emergency, but is being abused to place unqualified political cronies into these offices while simultaneously sending a chilling message to other prosecutors that the same fate will happen to them if they don't toe the partisan line and start working against Democrats right now. That's abusing the office, misusing the law, and acting against the Constitution nomatter how you slice it. Is it really a coincidence that Rove's right-hand man was set to be made prosecutor for Arkansas, longtime home to Bill and Hillary Clinton? To me, that tells you everything you need to know, regardless of the process for which Cummins was fired.

Posted by: Michael | March 31, 2007 01:46 PM

But there is a pattern of OBSTRUCTION OF JUSTICE in these firings. Four of the eight attorneys were working on political corruption cases involving Republicans. Before that two attorneys were fired for the same reason -- one of which was the super-lobbyist Abrhamoff. . . . We need to get to the bottom of this because OBSTRUCTION OF JUSTICE IS ILLEGAL!!!!

Posted by: | March 31, 2007 01:59 PM

All you left wing PC nuts needs to accept the fact that laws are laws. If we want to prevent blacks from voting in Georgia, we can. If we want to teach intelligent design, we can. If we want to shut up scientists, we can. You know why? Because we put the laws in place when Bush and the party were in total charge.

So what if we are dismissing AGs in swing states, this country is not about fairness, its about laws!!!

And if the law says we can imprison Americans for the color of their skin, we can!!

You cannot stop the wave baby!!

Posted by: Eric Dark | March 31, 2007 02:15 PM

All you left wing PC nuts needs to accept the fact that laws are laws. If we want to prevent blacks from voting in Georgia, we can. If we want to teach intelligent design, we can. If we want to shut up scientists, we can. You know why? Because we put the laws in place when Bush and the party were in total charge.

So what if we are dismissing AGs in swing states, this country is not about fairness, its about laws!!!

And if the law says we can imprison Americans for the color of their skin, we can!!

You cannot stop the wave baby!!

Posted by: Eric Dark | March 31, 2007 02:16 PM

Well, not that anyone REALLY cares what I think, but I think the whole thing stinks, and as one of the replies pointed out, similar doings happened under Clinton. Basically, the whole thing reeks of politically motivated high-handed fiddling, as was also the case under ClintonCo, people just can't leave well enough alone if they see an advantage to be gained, and it's shameful. Justice may be blind, but apparently isn't invulnerable to being shoved down a flight of stairs, so to speak. Further, Mr. Gonzales probably has other conflicts of interest that'll put this entire business to shame if they're really looked at, but that could be the subject of a whole series of articles.

Posted by: Bert | March 31, 2007 02:44 PM

All of these idealogical and overtly political arguments aside--is is quite apparent that even the Republican vermin in the White House understand that they stepped over the line. The proof? To protect themselves they've totally cut Gonzo loose to drift over the falls of his congressional appearance in two weeks. So much for rewarding loyalty.

Posted by: mikeasr | March 31, 2007 02:50 PM

"Kmiec is a serious player among former federal officials"

Gag me with a spoon, dude!

Posted by: Bartolo | March 31, 2007 03:38 PM

Several Republican senators have repeatedly proclaimed that `it`s not the crime, it`s the cover-up` that is creating problems. I beg to differ. The original acts are a BIG problem for all of the reasons others have mentioned. What I want to know is what kind of person defends such atrocious acts and where are their principles? This is very scary stuff. Subpoenaes, please.

Posted by: Gardenia | March 31, 2007 04:31 PM

> There is no doubt that this is one of the most incompetent administrations

That's a good thing. Imagine if it was really able to enact its agenda.

Posted by: TexLex | March 31, 2007 04:40 PM

The American public does not very much care about unemployed lawyers, at the very top, or rungs below. As interesting and as enlightening about bureaucracy as this episode may be, making it a national crisis is not possible.

If it gets stretched out too long, the issue becomes a yoke on the shoulders of Congress; and the issue shall be, why are you not devoting attention to things that seriously matter to regular people, because, there are plenty such to review in Congress?

Posted by: On the plantation | March 31, 2007 04:58 PM

Clinton fired all the federal prosecutors (FPs) and that was fine. The republicans had been in the White House for 12 years and the new democratic president wanted to be sure that these appointees would actively support the new administrations policies. If any retained or new prosecutors failed to vigorously support, legal, administration policies and goals then Clinton would have been perfectly justified in firing those individuals and I suspect the political left would have cheered. Late in an administration that is weakened by heavy criticism some FPs may feel increasingly free to flex their muscles and hue to their own agenda. The appropriate administration response is to fire them.

We very much need this political control of the FP's. They are incredibly powerful with wide discretion and many of them have demonstrated their willingness to twist laws and bring vindictive indictments not to mention the use of their offices to climb the political ladder. Giuliani's prosecutorial indiscretions come to mind with reference to the political ladder and Fitzgerald's prosecutions in the vindictive arena. Given the wide latitude federal judges seem determined to give the FP's these guys could convict two rocks of conspiracy for rolling down hill together after an earthquake. It is the height of folly to trust the judiciary or the good hearts of the FP's to protect us from even the most outrageous treatment. The political solution is not perfect but I for one like the idea that a member of the House or Senate can throw a fit and maybe even get an FP fired.

Oscar

Posted by: Oscar | March 31, 2007 04:59 PM

There is a difference between "broad" latitude, and "an absolute authority".

I think we're finding out what those limits are in this current situation.

Clearly the "Pleasure of the president" is tempered by two factors:

1. If the president, were to hold onto an official who engaged in serious misconduct, the Congress could impeach the official and remove him or her, regardless of the president's express wishes (and I can think of a situation where this might be the case). The power of impeachment requires an extremely high political bar, but it trumps any power that the president has in reference to staffing powers.

2. It is not within the president's power, or those of his subordinates to fire an official with the express purpose of ensuring that the laws ARE NOT "faithfully executed". The president and/or his subordinates cannot fire officials with the intent of obstructing justice.

Nothing has been conclusively proven in this incident, but I would not dismiss that possibility out of hand. The fact that these firings HAVE NO PRECEDENT in terms of scale is exactly why questions are being asked. The circumstances surrounding the firings are troubling.

The fact that the White House is stonewalling, and threatening to hide behind executive privilege, only feeds fears concerning the possibility of a blatantly illegal misuse of power.

I think part of the difficulty here is that attorneys are grafting "at-will" standards from the world of commerce onto the Federal government.

The Framers obviously wanted to give the president broad latitude in firing federal officials--even ones who had undergone Senate confirmation--but, in a government of limited powers, and checks and balances, how can a person, even someone as distinguished as Douglas Kmiec, suggest that this broad authority might be absolute?

I think the reason for the outcry right now is based in large part on the fact that that authority IS NOT absolute. There are circumstances that the president could fire a U.S. attorney that would be blatantly illegal. The president's implicit authorities--even ones codified by a statute--don't trump explicit authorities in the Constitution.

"Faithful execution" is there. "Fire for any reason" is not.

At least that's my unschooled understanding.

Posted by: JP2 | March 31, 2007 05:08 PM

We've heard often (in every article on this topic, practically) that all AG's serve at the "pleasure" of the president. I'd think it would be embarrassing to keep pointing that out after it was listed as the primary talking point in the Justice Dept's first email dump. But, even so, it's not exactly true. He can fire for any legal reason or no reason at all, but firing them (Lam) specifically to protect GOP donors is an obstruction of justice. Last I heard, that was still illegal. Or did the last congress change that too?

Posted by: jrcjr | March 31, 2007 05:11 PM

Btw, I see that the U.S. attorney's are listed as "at-will" employees. I also understand that the Appointments clause tempers that "at-will" standard.

I would be curious to see how the courts would rule on this. Especially ones who claim to apply an "Originalist" "strict constructionist" standard.

I would be very curious to hear Scalia making the argument that statutory law voids the Constitution. But here's a rubber meets the road test. One simple enough for ordinary Americans to understand.

Posted by: JP2 | March 31, 2007 05:18 PM

"Late in an administration that is weakened by heavy criticism some FPs may feel increasingly free to flex their muscles and hue to their own agenda. The appropriate administration response is to fire them."

So these guys then were fired for showing independence in the name of flexing their own muscle? Please enlighten us in this regard. Not bowing to political pressure to bring false prosecutions? What exactly were they doing in this regard?

I've also read the constitution a number of times, and although I agree with the court precedent that the President should have broad authority to fire officials, I don't see it established in the constitution as is so often stated. The Powers of the president are fairly simple and straightforward:

"Article 2. Section. 2. The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session."


He appoints judges, ambassadors, and all other such positions, and the Congress has the authority to delegate appointment of subordinate positions to the President alone or one of the other officers as they see fit, but nowhere is the process of removal, or the notion that confirmed officials "serve at the pleasure of the President" in the Constitution itself. It seems to me to be tradition, and thereby seding more control to Congress wouldn't violate the Constitution or separation of powers, especially when Congress is the one empowered to establish the tribunals and conduct investigations in the first place. So, some of these positions obviously do not serve at the pleasure of the president (as they are in different branches), but why do we automatically assume extraconstitutionally that all executive members do? If they require Congress' approval for appointment, why should they not legislate a way to overrule their removal if Congress so desires? This also wouldn't be directly unconstituional, just another extraconstitutional move.

The issue here is all about the right wing's notion of the "unitary Executive" and building more executive power. Note all the references to "separation of powers" with no reagard for "checks and balances," a phrase completely foreign to the vocabulary of the modern "conservative."

Posted by: Michael | March 31, 2007 05:26 PM

JP2's was among the several very intelligent posts on this thread. Kmiec's point that the Administration may legally and constitutionally fire any U.S. attorney is, of course, not the point. We all understand that. The point is whether the Administration used that power in a perverted way. Prosecutors may be dumped for dissing Administration priorities, but when they are dumped for not being sufficiently Nixonian, that's a problem, and one the Congress is entitled to ask about.

Andrew Cohen also had it right in his series. The U.S. attorney firings demonstrate a failure by the AG to insulate the USAs from political pressure and manipulation. Doug Kmiec can say the firings were constitutional, but he ignores the question of whether it is good policy to send a message to USAs and AUSAs that they are not really servants of the law; they are just political tools.

And why should anybody be surprised that Kmiec didn't consider that issue? Forget that he has an endowed chair at Starr's Pepperdine U. He carries a huge pro-Admininstration bias stemming from his arch-conservative views of virtually unbridled executive power. He is a kindred spirit of Steve Presser, the arch-right Northwestern professor who co-authored a text with him. His DOJ credentials were as "constitutional counsel" to Reagan and George H.W. Bush in the 1980s. He was a political appointee to an ivory tower job in the ivory tower that is Main Justice.

With all due respect to guys like Kmiec and Presser, they wouldn't know a trial court if it bit them in the you-know-what. Nor would they have any idea about the imperatives of running a Justice Department in a way that inspires confidence among the trial attorneys and AUSAs who actually do the Department's work, and among the public which the Department serves.

Posted by: ExAUSA | March 31, 2007 06:31 PM

I expect Congress to scrutinise the decisions of an Administration. This allows for transparency, accountablity and responsibility. This is one of the checks and balances that limits abuses of power and uncovers bad decisions. Congress would fail the electors if it assumed that all decisions had merit. If electors want to elect officeholders then they need insights into their activities and they expect them to justify their actions.

Posted by: Robert James | March 31, 2007 06:55 PM

It is curious that Republicans have decided that Attorneys General, and U. S. Attorneys "serve at the pleasure of the President."
Tony Snow serves at the pleasure of the president. The White House Speach writers serve at the pleasure of the president. The president hires them, and fires them. Congress does not find itself any where in the loop. There is no provision in the law for Congress to impeach them. Cabinet Secretaries, including the Attorney General, U.S. Attorneys, and others who require Senate Confirmation serve at the pleasure of BOTH the President and the Senate. While they are constructively within the Executive Branch, the fact that they require confirmation makes them creatures of the Nation, not the President. When an administrations underlings decide to dismiss those creatures of the nation, especially for reasons of political correctness or as examples to other such office holders, they are wrongfully terminated.

It is especially true that when such dismissals have the appearance of being to prevent an attorney from prosecuting an administration favorite, or to coerce an attorney to prosecute an administration "enemy", then just as in a case of a conflict of interest, the appearance is in itself a crime.

It is easily noted that Republicans who can even grasp the concept of "conflict of interest" are a rare phenomena indeed, and Republicans who actually allow considerations of "conflicts of interest" to dissuade them from courses of action that they would like to pursue are virtually unknown, so this whole exercise is one of trying to instruct an unteachable child, but Congress, the press, and the courts need to keep trying.

The Electorate needs to contribute to the process by refusing to vote for politicians who just won't learn.

Posted by: ceflynline@msn.com | March 31, 2007 08:27 PM

The only reason the Republicans didn't try too hard to get rid of Janet Reno is because she would of turned them over her knee and spanked them. Much like Nancy Pelosi has done to Pres. Bush in the last couple days, when he tried to throw a tantrum

Posted by: Cranky | March 31, 2007 11:49 PM

I think the "firing" of the attorneys, and the reaction following is another case of the hounds chasing the fox until the use of a fox is dead and a new one is found. It appears that the real facts of the condition of what is called Katrina reveal that the situation was due to acts that were performed as far back as 1929. That the situation at Walter Reed: people that work there and were patients there tell an entirely different story than reporters in a rant for a headline. What appears to be the problem was in a BUILDING #18. A building that was used for overflow of cases that were no more of serious nature.
The rage would have it that the whole hospital was on the ropes. Iraq: about 3000 deaths in 48 months. In the Invasion of Normandy, WWII, 9,000 were killed and 60,000 casualties during the THREE WEEKS. At that rate it would take the Iraq matter to go on for TWELVE YEARS. WWII the German city of Dresden was overcrowded with Germans fleeing the advancing Russians, 3 nights of bombing by the RAF and 3 days by the Army Air Force obliterated the city and the approximately 1,000,000 people in it. More than Hiroshima, Nagasaki and Tokyo combined! Every war this country hass been in, war was not ever declared by the "enemy"

Posted by: vern | April 1, 2007 02:39 AM

Step back one and look at the bigger picture.

This was a test. It got through because of the Patriot Act provision. The issue isn't the firing it is the non-consented appointments. That they are in battleground states (by in large) is just the gravy that makes these potatos stick to the ribs.

Certainly Mr. Rove on up through Mr. Bush anticipate a GOP return to power (I don't see how wishing makes it so, but..)and if this "got through" without incidendent then you would have seen more of it.

Mr. Gonzales, unfortunately didn't stay on script and a few around including so USA's decided to break silence. Now it is a lying issue and Senator Schumer et al will peel the skin off these guys and gals with thoroughness and skill.

Posted by: hdhouse | April 1, 2007 05:29 AM

There are posters here who use the Clinton did it argument. It is dishonest. All Presidents fire USA's in office when they assume the Presidency. The point is that these 8 are Bush appointees. I am often surprised at the dishonesty of people who distort information and expect to pass it off without scrutiny. To repeat: these are Bush appointees. Bush is entitled to fire them. But his Attorney General is not entitled to give a different set of reasons why they were fired them each time he answers questions. And using the Ï cannot recall"defense is a no no.I thought Republicans were for truth and honor. I guess I will now be an independent. Republican has become a code word for crooks and liars.

Posted by: Alan | April 1, 2007 07:18 AM

As the recent issue of The Economist puts it: * had he [Gonzales] an ounce of integrity, he would have resigned long ago for his role in commissioning a memorandum that amounted to a legal defense of torture *. Amen to that!

Posted by: | April 1, 2007 10:17 AM

God I have to love liberals and the lunatic fringe of the conspiracy theory loving Left. The entertainment value alone of watching the intellectual meltdown of what was once a proud and honorable viewpoint (however closely it was aligned with America's enemies) has been encouraging for us of a more conservative bent, as it seems that we won't really have to defeat liberalism. It will implode all on its own of its own outrageousness.

To wit -- Bush and Co are the greatest criminal enterprise in the history of the world, and the firing of 8 political appointees proves it. Um...yeah.

Bush is the stupidest man ever to be elected President, yet his grades and performance at Harvard and Yale were better than those the Left championed as our secular Saviour, John Kerry. So the Left's argument against re-electing the stupidest man ever as president, was to have us elect an even stupider one.

The Left's position on Bush goes further:

Notwithstanding Bush's stupidity, he is the evil genius behind everything wrong with the world. He's incompetent, but somehow masterminded the "U.S. led secret attack on the World Trade Center and the Pentagon". Just ask reknowned political analyst, and intellectual giant, Rosie O'Donnell! Bush is an idiot who can barely find his a** with two hands, yet somehow crafted the greatest takeover of Executive power in the history of the Republic.

Bush is Hitler. (Bush is never Stalin, Pol Pot, and Mao, however, even though they were worse than Hitler. They were Leftists, so they're ok, and it would insult them if the Left compared Bush to one of their ilk). I was actually relieved to find out that Bush is like Hitler because we all feared that if and when a dictator ever came to this country, millions of millions of Americans would be placed in gas chambers and summarily murdered and being a Republican would be illegal. As that hasn't happened, if this is what it is like to live under "Hitler", I wonder what we'll call the REAL Hitler when he/she comes? So what is the point of calling Bush Hitler? There isn't one, of course, other than hysterical outrage and and intellectual "gas tank" that is fully pegged on "E".

This list of self-contradictory arguments goes on ad-nauseum, deflating any intellectual credibility out of anything anyone with a (D) after their name has to say. Their hatred of anything and everything Republican is so profound as to blind them to even simple truths. Bush says Bin Laden is behind 9/11?? It can't be. Bush must be behind it. Bush fired a bunch of underperforming lawyers for being less than loyal to their boss? CONSPIRACY! CRIMES! Politicians acting like politicians, playing...gasp...POLITICS?? Call the U.N! America is a banana republic and we need UN forces to come in and take over!

Democrats, of course, are our only hope, goes the Left's argument. The fact that the last Democratic President we had saw fit to commit perjury, lie to a Federal grand jury, was impeached, and is now a disbarred author, who's political opponents over the years had a nasty way of dying surely represents our only hope. His National Security Director likes to accessorize by stealing documents from the National Archives and stuffing them in his pants. Thankfully, his wife is running, and is promising to bring us the Whitewater Gang II writ large, complete with National Healthcare, and the lack of access and waiting times our friends in Canada, Britain, and Japan all "enjoy".

The government can't run the VA Healthcare system, but the Left wants to put it in charge of the whole US healthcare system.

Such is the logic, or lack thereof, and the towering intellect of the Democratic Party in 2007.

Republicans have nothing whatsoever to fear. Just look at all the CO2 being exhaled by the Left regarding something so inane as the firing of political appointees, an act of global warming if there ever was such a thing.

So rejoice, my fellow conservatives. And relax, and enjoy the implosion. Another 10 years of this, and liberalism will rank with flat earth theories in the halls of shame.

Posted by: Michael | April 1, 2007 10:35 AM

Michael, I agree that there are some extreme comments about Republicans.

But before you spend too much time patting yourself on the back. Keep in mind that the Rubber Stamp Congress inserted a line into last year's Patriot Act that removed the Senate's advice and consent provision.

Now, I don't think you have to be a genius to understand the implications of that move. I think it helps if you are a little conscientious and know a little bit about your history. But you don't have to be a genius.

Look at the debates that took place in the First House of Representatives on June 17, 18, 19th, 1789. Those representatives spent 3 days debating the merits of ONE LINE of text in a law involved with the creation of the Department of Foreign Affairs. That line concerned whether or not the president had the right to fire members of the executive branch.

The debates are a fascinating read. People fell out on both sides of the issue making strong good faith arguments. What was not in doubt was that these men truly took their jobs seriously. They took time to understand the possible implications of their decisions. And I think history has demonstrated that they served the people, their constituents, and us, the inheritors of this tradition, well.

Contrast this with the Rubberstamp congress. How many days, hours, or minutes did they spend debating a point which fundamentally changes the way our government works? How many days, hours, or minutes did they spend debating this issue which made a clean break with 150 years of tradition in the USAs appointment process?

1 day? 1 hour?

How about zero minutes.

ZERO Minutes.

ZERO Minutes.

Arlen Specter's staffer, who inserted this provision, and who became a US Attorney last summer, didn't even bother to tell his boss.

Didn't even bother to tell his boss that he was changing the way our government operates in a FUNDAMENTAL way.

For this abuse of the public trust, and bad faith departure from Constitutional tradition, this guy is rewarded with the US Attorney position in Utah.

Talk about an inverted moral universe.

I know there's a knee jerk reaction among some Republicans to minimize this incident (I don't think it's fair to use the word "conservative", because conservatives in the Burkean sense, respect their history, and the traditions of government. They don't jettison 150 years of tradition WITHOUT TAKING EVEN 1 MINUTE to understand why they are doing what they are doing--as happened last year during the Patriot Act).

But this U.S. attorney's issue has exposed so many things that are just flat out wrong with the way the GOP has used power over the past 6 years. Fundamentally, these are much larger than partisan issues. These are actions of "designing" men that Hamilton, and Madison warned us about. Men (and women), who through blind ambition, or willful ignorance have made some incredibly stupid and dangerous decisions. They have broken a public trust.

Bush is no Hitler.

Bush is no Washington, Lincoln, or Truman either.

I'm not even sure it would be fair to call him a Harding.

This stonewalling with this U.S. attorney's issue isn't going to help his legacy much either. It's not in keeping with the trust that he has sworn to uphold and protect. The People and their representatives have a right to expect honest answers to simple questions on this issue. So far those answers have been slow in coming. Those that we have received have inevitably been contradicted days or weeks later by some other revelation of fact. Not good.

Posted by: JP2 | April 1, 2007 02:12 PM

The Fifth Amendment is the appropriate shield to use when public politics goes rabid in chasing down the individual. Congratulations to the founding fathers for keenly enlightened foresight.

Posted by: On the plantation | April 1, 2007 04:11 PM

On the plantation,

The Framers didn't put the 5th amendment into the Bill of Rights to protect individuals from questioning from political adversaries.

If a person hasn't engaged in legally dubious activities, or witnessed activities that might be considered legally dubious, then there isn't any reason to invoke the 5th.

I suspect most courts would throw out the claim on the basis of "politics" or a fear on the part of an attorney that his or her client couldn't resist the temptation to lie under oath.

Posted by: JP2 | April 1, 2007 05:48 PM

I don't think this is about firing attorneys over politics. This is about LYING to Congress about why they were fired (remember the performance evaluations) and it's about possible obstruction of justice (see Carol Lamm.) And it's about using the law to go after political opponents (see New Mexico.)

Politics is going after crooked union members vs. crooked Enron types.

Come on, Mr. Cohen. Help keep us on track. Politics is being used to cover up illegal acts. Otherwise, why would they lie in the first place?

Posted by: blueez | April 1, 2007 06:30 PM

JP2,

The Fifth Amendment is there for the dignified protection of every individual whether they have guilt or not, and whether you or I like it or not.

Posted by: On the plantation | April 1, 2007 08:18 PM

On the plantation,

I would agree that the 5th amendment is in place to protect persons from self-incrimination and to help ensure the due process of law. Invoking the 5th does not mean that a person has committed a crime. Although it usually suggests that they may have some doubts about the legality of actions that they were either directly involved in, or passively engaged in (e.g. witness to an illegal act).

Our Constitution is in place to ensure the basic dignity of every individual. That does not mean that everyone who invokes the 5th has engaged in dignified activity. It also is not in place to protect individuals from inquiries that may have a partisan bent. The truth is the truth, regardless of whether questions are posed by a friendly partisan, or an adversarial partisan. In a courtroom, I cannot see a prosecution's witness refusing to answer questions from the defense just because they may not like the questions, or visa versa. I am not 100% certain about this, and would be curious to hear other opinions.

In theory it could be argued that an attorney might advise a client to invoke the 5th if that person was a habitual liar, or was known to have a propensity for telling untruths. That would be a novel application of the 5th, but it seems like a plausible use as well. I don't know if that is the case with Ms. Goodling, but I can see cases where that might come into play.

Posted by: JP2 | April 1, 2007 08:55 PM

Andrew

You have raised some important issues, and brought to light some significant history, in your provocative writing in the matter of the Attorney General. I have benefitted from your analysis before. Indeed, when I served on the ABA's silver gavel committee, it was a pleasure to see you as a nominee for that prestigious award.

For the reasons stated in my Los Angeles Times essay, I believe Attorney General Gonzales should not resign, so we do differ in result. But I suspect both of us share the concerns articulated so well in 1940 by Robert Jackson who summarized the competing institutional considerations in a speech to U.S. Attorneys 37 years ago today:

"Your responsibility in your several districts for law enforcement and for its methods cannot be wholly surrendered to Washington, and ought not to be assumed by a centralized Department of Justice. It is an unusual and rare instance in which the local District Attorney should be superseded in the handling of litigation, except where he requests help of Washington. It is also clear that with his knowledge of local sentiment and opinion, his contact with and intimate knowledge of the views of the court, and his acquaintance with the feelings of the group from which jurors are drawn, it is an unusual case in which his judgment should be overruled.

"Experience, however, has demonstrated that some measure of centralized control is necessary. In the absence of it different district attorneys were striving for different interpretations or applications of an Act, or were pursuing different conceptions of policy. Also, to put it mildly, there were differences in the degree of diligence and zeal in different districts. To promote uniformity of policy and action, to establish some standards of performance, and to make available specialized help, some degree of centralized administration was found necessary.

"Our problem, of course, is to balance these opposing considerations. I desire to avoid any lessening of the prestige and influence of the district attorneys in their districts. At the same time we must proceed in all districts with that uniformity of policy which is necessary to the prestige of federal law."

In balancing the opposing considerations today, you and I both may have struck the balance differently than Attorney General, but I cannot institutionally see Congress substituting its judgment in this instance without doing great damage to the structural features of the Constitution which place distance between prosecution and the political branch not charged with execution of the law.

With every good wish,

Douglas Kmiec


Posted by: Douglas Kmiec | April 1, 2007 11:44 PM

gonzales, the torturer's apprentice, should resign for justifying abuse of prisoners, advising the president to break our treaty obligations, and condoning warrantless wiretapping. lying to congress and to the public, and demonstrating complete incompetence in the matter of the u.s. attorneys is just one more reason he should quit. but if he doesn't, it'll be good to have him still around, as a punching bag, if for no other reason. and for a reminder of what a jerk his boss is.

Posted by: samg | April 2, 2007 12:45 AM

"In balancing the opposing considerations today, you and I both may have struck the balance differently than Attorney General, but I cannot institutionally see Congress substituting its judgment in this instance without doing great damage to the structural features of the Constitution which place distance between prosecution and the political branch not charged with execution of the law."

This is an interesting point, although I'm not so sure what this means in practical terms.

I understand up to a point that the Executive SHOULD be given broad discretion in terms of how "faithfully executing the laws" is defined (e.g. priorities on immigration policy, or gun control, etc); although the Executive shouldn't have absolute discretion absent any oversight.

e.g. I don't think the president should be able to redefine what is and isn't bribery. But if he is enforcing the law applying a novel definition, it seems better that the people are made aware that the President has redefined "bribery" with a self-serving tilt rather than for the People to find out 10 to 15 years later that a bunch of corrupt politicians have robbed the country blind. Just a hypothetical of course.

Posted by: JP2 | April 2, 2007 01:24 AM

The fifth amendment exists solely to prevent you from testifying that you committed a crime. If she has not yet committed a crime, there is no grounds to plead the fifth. It's not there to protect you from committing a crime during your testimony, as she apparently is trying to argue. When you plead the fifth, you don't just invoke the amendment or your right not to testify- you say "I refuse to answer the question on the grounds that I might incriminate myself." If that's not the answer to your question, it's not a fifthe amendment issue. It's not a right not to testify, it's a right not to testify against yourself.

Posted by: Michael | April 2, 2007 07:18 PM

When U.S. Attorney Patrick Fitzgerald was appointed as special prosecutor in the Valerie Plame leak case, he was explicitly protected by law from a dismissal by his employer (DOJ). In my home state, U.S. Attorney John McKay was dismissed, alledgedly for failing to prosecute voter fraud when my state elected a democrat to Governor and an incumbent democrat to U.S. Senate. Hard working voters in Washington state were very wary of the outside political pressures in the election process and the subsequent wrangling over the results. When it feels like elected officials are using the law to manipulate elections, the appearance of tampering with the election process, is of grave concern. Our government is well intentioned for the good of the people, but it does assume a level of trust. When I was in the military I was proud to defend the constitution of the United States, and follow *legal* orders of the CINC. When the CINC is suspected, and accused of wrong doing, criminal acts, power abuses, etc. the trust and respect of voters is damaged, and the morale of Americans is negatively impacted.

Some have written about the checks and balances wisely instituted in our government (executive, legislative, and judicial). We seem to have an executive who has purposivefully and systematically manipulated a terrible radicalism to gain unprecedented powers, in effect disturbing our system of checks and balances. This is akin to a dysfunctional family dominated by an alcholic, abusive parent.

Mental health practitioners typically advise an intervention to effect positive change in a family. In the political realm an impeachment is an effective intervention. Another intervention is to actively participate in the 2008 election cycle. Americans deserve much better government, however, it is designed to be a government of the people, by the people, and for the people. Thus, we all must accept some responsibility for finding a solution to this situation. No one will be held accountable, if we are not willing to ask tough questions.

Posted by: Richard Morris | April 3, 2007 01:22 AM

Kmiec is a rabid rightwinger and teaches at Pepperdine, an evangelical law school, if you can believe that!

Posted by: candide | April 3, 2007 12:11 PM

See this commentary published in today's Chicago Tribune by Ron Safer, former N.D. Ill. criminal chief:

By Ronald S. Safer
Published April 3, 2007


Many people have breathlessly ridiculed the rating by Alberto Gonzales' office of Patrick Fitzgerald, Chicago's U.S. attorney, as a "mediocre" prosecutor. Those people are not wrong -- more on that later. But what is lost in the stampede to praise Fitzgerald is the recognition of why the stories concerning the firing of eight U.S. attorneys merits continued front-page coverage. It has to do with power and politics.

There may be no public office in the United States that can change the course of a person's life as dramatically or swiftly as that of a prosecutor. A person can be sitting at his desk or on his sofa one day, and the next be visited by government agents who whisk him away to jail without notice. His life will be shattered beyond repair. He will lose his job, his life's savings and, in most cases, his freedom and perhaps even his family.

An unspoken, but widely acknowledged, truth is that the prosecutor's power to take away everything precious in someone's life is virtually unchecked. While a prosecutor might not be able to persuade a grand jury to indict the proverbial ham sandwich -- as the common saw goes -- I am certain it would indict the maker of that sandwich for using mayonnaise not mustard, if the prosecutor is zealous enough. "No bills," where a grand jury declines to honor a prosecutor's request to indict, are as rare as Cubs World Series appearances. Once an indictment is issued, the court system provides little more of a check or balance. The courtroom tilts heavily toward the government's side.

This awesome power rests primarily with 93 U.S. attorneys across the country, who are appointed by the president, typically based on recommendations of senators from the president's party. This process is inherently political. However, as the former chief of the criminal division of the Chicago office that Fitzgerald now runs, I can attest that every assistant U.S. attorney in that office appreciates the weight of the power he or she has and the responsibility it entails. Every one of them understands the importance of making decisions based only on the merits of the case.

In the past, Washington has been scrupulous about avoiding putting a political finger on that scale. The system depends on this impartiality. We are prepared to give these attorneys largely unchecked power to ruin lives that has no analog in our system of government because we have faith that, correct or incorrect, they exercise their awesome power free from political influence.

Now, however, politics rears its ugly head. The Bush administration has rated these people vested with awesome power not on independence, energy, zeal or integrity, but on "loyalty" to the White House.

It is hard to imagine a more dangerous and misguided measuring stick for those who make the decision whether to indict political officeholders who may be corrupt, among other potential defendants.

Former U.S. Sen. Peter Fitzgerald, an Illinois Republican, appreciated the paramount importance of having an independent U.S. attorney here. He was so committed to that principle that he willingly endured the wrath of his political peers -- and the Chicago legal community -- by searching outside Illinois for a nominee.

He found that person in Patrick Fitzgerald, who has proven to be impervious to political influence. He leads an office that prosecutes those from both political parties who have abused their power. He is a vigorous and zealous prosecutor. I do not agree with all of the prosecutive decisions his office has made. I believe he has overreached, at times, and has erred on the side of zeal over empathy. That may be appropriate for the top of the pyramids of power; it is not at the bottom of those pyramids.

But we do not require our U.S. attorneys to be perfect. We do not require them to always be right. We do require -- and we have every right to insist -- that the decisions they make be based on their judgment, free from outside influence. By that all-important measuring stick, it is hard to imagine a prosecutor who scores higher than Fitzgerald.

That the highest levels of government use the opposite measuring stick -- loyalty to the administration -- to evaluate and retain U.S. attorneys is dangerous and frightening.

It is a serious threat to our freedom and justice system.

It is worthy of front-page coverage.

It is worthy of everyone's attention.

It is worthy of our loud and vocal condemnation.


Ronald S. Safer is a former federal prosecutor now in private practice in Chicago. He is representing one defendant in the federal trial of businessman Conrad Black and several of his associates.

Posted by: ExAUSA | April 3, 2007 03:57 PM

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