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The Question is Why:
I've been reading a lot about the U.S. Attorney purge story recently, and I think it's helpful to be clear about where the story is: In my view, the key question here is simply why the U.S. Attorneys were forced to resign. No one questions the President's legal authority to force the U.S. Attorneys to resign. No one suggests that forcing them to resign was illegal or is demanding their reinstatement. Rather, the question is simply why these U.S. Attorneys were pushed out.

  Some readers may ask, if no laws were broken, why should Congress be able to investigate what happened? I think the reason is that while the President can fire U.S. Attorneys without cause, Congress has a lot of control over what happens next. Until 2006, a replacement interim U.S. Attorney was permitted to serve only up to 120 days. After that, Congress required the district court to name a replacement interim U.S. Attorney. See 28 U.S.C. 546 (pre-2006 version). In 2006, Congress amended this law in the legislation generally known as the Patriot Act reauthorization law (not the actual Patriot Act of 2001, but the reauthorization in 2006). As amended in Section 502 of that law, a person appointed as U.S. Attorney on an interim basis "may serve until the qualification of a United States Attorney" through the usual Senate confirmation process.

  As I see it, the key point here is that Congress has statutory control over the rules governing how open U.S. Attorney spots are filled. Although firing the U.S. Attorneys was not a crime, Congress has a legitimate oversight interest in learning about how the Executive has used the power Congress has granted it. Why the U.S. Attorneys were fired seems to be directly relevant to that; Congress has a good reason to want to know if loosening the rules led to replacements of U.S. Attorneys for reasons that are not based on legitimate law enforcement concerns.

  Of course, the fact that Congress has a legitimate interest does not answer everything; there are lots of competing legitimate interests here, and that's only one among them. But I do think it's helpful to see that the issue here is why the U.S. Attorneys were fired rather than the legality of the firing itself.
Mahan Atma (mail):
Orin,

If a member of Congress or the Executive Branch:

(1) Leans on a USA to prosecute a member of the opposite party;

or

(2) Leans on a USA not to prosecute a member of the like party;

And then the USA is fired at the urging of that person because the USA failed to comply with (1) or (2)...

Is this illegal?
3.21.2007 7:29pm
scote (mail):
"while the President can fire U.S. Attorneys without cause"

And congress can investigate without cause. Just because something might not be illegal (though it may well be) doesn't exempt it from political repercussions--including congressional hearings.

Oh, and there is the small matter of lying under oath to congress...
3.21.2007 7:29pm
Bill Poser (mail) (www):
Also, isn't Congress entitled to investigate whether Senator Domenici acted ethically in (a) pressuring Iglesias to reveal information that is by law confidential and (b) pressuring Iglesias to issue indictments for the purpose of influencing an election? Indeed, these actions might be criminal, not merely unethical.
3.21.2007 7:35pm
Justin (mail):
Orin (or any other prosecutor), I would appreciate an answer to this question.

If it was determined (and I understand this has not been proven) that the following facts were true:

A) Somebody in the CIA, as well as Congressman Jerry Lewis, communicated to the White House that Carol Lam's investigation was going to stumble across a major illegal act (say, some sort of bribery/corruption thing). Such an uncovering would certainly implicate Lewis and major players at the CIA, and may implicate White House officials themselves (maybe even Karl Rove or Cheney, say). The White House relayed that information to Ralph Sampson at Justice. Ralph and Rove discussed the idea and determined that the best way to kill the investigation before Lam uncovered the (original) conspiracy was to terminate her on a pretext of immigration issues, and replace her with someone who was instructed not to continue the inquiry.

Would this violate 18 USC 1512(c)(2) (or any other law)?

That text, fwiw, states:

(c) Whoever corruptly—
(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object's integrity or availability for use in an official proceeding; or
(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so,
shall be fined under this title or imprisoned not more than 20 years, or both.

B) If it was determined that Karl Rove authorized Michael Elston to make a phone call to HE Cummings, that was designed to intimidate the Gonzales 8 from testifying truthfully before Congress, in the sense that if they made truthful statements that would embarrass the White House or flame the scandal, they would (otherwise legally) release private documents embarrassing them, would THAT violate 18 USC 1512(b) or (c)?

C) If it was determined that before firing McKay, Inglesias, or Lam, that the White House and/or the Department of Justice made phone calls demanding either indictments (regardless of the evidence) or to terminate an investigation into a public official, would that violate 18 USC 1512(c)(2)?
3.21.2007 7:38pm
Paddy O. (mail):
This post is an excellent, succinct, and neutral overview. Thanks.
3.21.2007 7:47pm
prince roy (mail) (www):

No one suggests that forcing them to resign was illegal or is demanding their reinstatement.


Mr. Kerr,

If the president fired these prosecutors because they refused to:
a)cease their investigations of alleged illegal GOP activity;
b)press ahead with investigations of the Democrats because they believed the charges had no merit

Is it really your position that this behavior by the president is legal?
3.21.2007 7:53pm
JonC:

Congress has a good reason to want to know if loosening the rules led to replacements of U.S. Attorneys for reasons that are not based on legitimate law enforcement concerns.


According to the TPM timeline, the idea of replacing some or all of the U.S. Attorneys was floated long before the Patriot reauthorization occurred. Gonzales and Sampson were apparently discussing the option as early as December 2004/January 2005. According to THOMAS, the Patriot re-authorization bill was not introduced in Congress until July 2005. The provision that changed the manner of appointing U.S. Attorneys was not inserted until sometime after the bill entered conference on 7/29/05. Conference did not end, and Bush did not sign the bill, until March 2006.
3.21.2007 7:53pm
MnZ (mail):
Some of the posters on this board seem to be muddling two issues: (i) interferring with US attorneys work and (ii) firing them.

As I understand it, the former is illegal while the latter is not. Now, it is true that one could fire a US attorney to interfere with their work. However, the act of firing is not sufficient evidence to show this.
3.21.2007 8:02pm
Adam B. (www):
Also, regardless of whether the behavior was technically illegal, it might still be impeachable.
3.21.2007 8:02pm
Justin (mail):
MnZ, small nit:

The firing is not *proof* of interference, and nobody is claiming it is. But it certainly is *evidence* of interference, when coupled with other things we know.
3.21.2007 8:07pm
MnZ (mail):

Also, regardless of whether the behavior was technically illegal, it might still be impeachable.


Isn't all behavior impeachable (or unimpeachable) based on the prerogative of Congress?
3.21.2007 8:09pm
Adam B. (www):
MnZ: It sure is.
3.21.2007 8:13pm
Mahan Atma (mail):
However, the act of firing is not sufficient evidence to show this.


But there's evidence (such as emails) suggesting that there was a link. See, e.g., Sampson's email talking about the "big problem" with Carol Lam, sent the day after she made known her intention to execute search warrants on GOP cronies.
3.21.2007 8:14pm
Kazinski:
First of all lets not take the talking points as credible allegations. For instance I keep reading that there is an open question whether Carol Lam was fired as retaliation for the Cunningham investigation or to head off the Jerry Lewis investigation, when the facts are:

a) Lam was on the block before the Cunningham investigation was dropped in her lap via an newspaper expose.
b) Jerry Lewis was being investigated by the LA US attorneys office, not Lams office.


You'll keep reading for as long as the story lasts that these are the issues that need to be investigated, and maybe every third of fourth story you read on the subject is going to have even an allusion to these already established facts. The distortion going on in the press is really mind numbing for instance Patterico busts the LA Times for highlighting the fact that memo's were written after the firings to justify them on performance based grounds, while trying to bury the fact that there were memos written well before the firings making the case that they were necessary on performance based criteria.

But it really doesn't matter, if there is actually fire behind the smoke, which I doubt, it will hurt the Bush adminstration. But if there isn't any substance to the charges it will just add to the perception in a wide swath of the country that the press, and now the democratic congress is breathlessly trying to gin up a scandel where none exists. And will join the TANG memos, the WMD intelligence, the Ohio vote, the Plame kerfluffle, the Florida vote, Haliburton as cause celebs to those who oppose Bush mainly for other reasons, and a big yawn to most of the rest of the country.
3.21.2007 8:19pm
c.f.w. (mail):
MnZ:

"Now, it is true that one could fire a US attorney to interfere with their work. However, the act of firing is not sufficient evidence to show this."

What is sufficient - confiscating folders, files, papers, office space? Is that not what happened?

It seems to me a jury could infer the intent to interfere, given the circumstances, especially the clumsy cover-up effort. It is not a required inference, but it is not beyond the realm of reason.

Homer has nodded, I am afraid. Orin needs to think more deeply here - just because an employee is "at will" does not mean it is ok to fire that person for reasons that violate public policy (such as public policy concerning not interfering with investigations, or not using political operatives in DC to dictate whom to investigate in WA or NM or NV).

[OK Comments: C.F.W., are these limitations on firing criminal or civil, and do they apply to the decisions of the President? Given that you have thought more deeply than I on these questions, I look forward to your answers.]
3.21.2007 8:24pm
ajftoo:

As I see it, the key point here is that Congress has statutory control over the rules governing how open U.S. Attorney spots are filled. Although firing the U.S. Attorneys was not a crime, Congress has a legitimate oversight interest in learning about how the Executive has used the power Congress has granted it. Why the U.S. Attorneys were fired seems to be directly relevant to that; Congress has a good reason to want to know if loosening the rules led to replacements of U.S. Attorneys for reasons that are not based on legitimate law enforcement concerns.


Orin,

So, essentially, you are saying that the "why" is that the President wanted to open up the slots to take advantage of the "loosened" rules.

What's wrong with that?

[OK Comments: Afjtoo, we all do things because we want to take advantage of the benefits of doing them; however, that is generally not understood as the "reason" for our actions. The question is, what advantages did the Administration perceive in firing the U.S. Attorneys? Were the U.S. Attorneys fired for legitimate law-enforcement related reasons, or for purely partisan reasons? Etc.]
3.21.2007 8:40pm
Elliot123 (mail):
OK: His rhetoric struck me as absurd: Given reason to think that at least some of the U.S. Attorneys were fired for not being excessively partisan...

Your link really doesn't give reason. What's the reason?
3.21.2007 9:03pm
Baseballhead (mail):
So, essentially, you are saying that the "why" is that the President wanted to open up the slots to take advantage of the "loosened" rules.

What's wrong with that?
Because the American people might not be well-served by such moves? Just because it's possibly (mostly?) legal doesn't mean it's a good idea. Assuming for the sake of argument that nothing illegal happened (no obstruction of justice, no lying under oath, etc.), is the American public well-served by having effective USAs removed so an Administration lackey who is clearly not as qualified as his predecessor? Or appointing new USAs who can't even presently practice law in that state? Or removing USAs who are clearly effective in finding and prosecuting corrupt government officials?

And this is just assuming no laws have been broken. I don't think anyone here is willing to bet that nobody's telling stories out of school on this one.
3.21.2007 9:11pm
Lior:
I currently assume that firing the US attorneys was legal. As an action of the political echelon of the Executive, however, an important concern should be whether it was a good idea. Did the PATRIOT reauthorization include a "Reaffirming Important Congressional Oversight Act" limiting Congressional oversight to the legality (as opposed to the wisdom) of Exeuctive branch actions?
3.21.2007 9:16pm
Spectral Disorder:

am was on the block before the Cunningham investigation was dropped in her lap via an newspaper expose.

Funny, Cunningham was one of the guys complaining about her lack of prosecutions of immigration cases....
As Tony Snow says, there are a lot of "intriguing questions" here, but unfortunately his boss is scared that we might get the answers. Why could that be???
3.21.2007 9:21pm
Truth Seeker:
Just because it's possibly (mostly?) legal doesn't mean it's a good idea.

So which presidential administration never had a bad idea? If it's not illegal, it's Bush's perogative. He's the president. He gets to make bad decisions as well as good ones. Don't vote for him next time.

Congress passes bad ideas into law every year.
3.21.2007 9:26pm
Baseballhead (mail):
Congress passes bad ideas into law every year.
And then we have investigations. Surprise! We're having one now. Again, assuming there's no felonies involved, it's STILL a good idea to find out what the heck happened, if only so that next time around, people can vote the blockheads who had these bad ideas out of office. (Seems particularly appropriate, since there's no way to vote against the present blockhead in office. I'm still wondering how he got my vote the first time ...)
3.21.2007 9:37pm
Justin (mail):
"I'm still wondering how he got my vote the first time ..."

Palm Beach voter? :)
3.21.2007 9:44pm
John (mail):
I think you miss the point. Sure, Congress would like to know a lot of stuff. So would you, or us. The question is, has it the power to make the Prez tell them. I think not. I think the President would have been perfectly within his rights to say, "none of your business." This may not have been so good politically, but it is the fact. This has been true in my life at least since the Saturday Night Massacre of Nixon's, to the Clinton travel office scandal. Employees at will are just that.

Congress's only remedy to Bush's "buzz off" would be impeachment, if it cared to go that route.
3.21.2007 9:55pm
Baseballhead (mail):
Congress's only remedy to Bush's "buzz off" would be impeachment, if it cared to go that route.


I don't know about that, and besides, there's no real evidence that the President's lied. There IS some real evidence that other people in the White House are, if not outright lying, certainly playing fast and loose with the truth. As Prof. Kerr notes, Congress has a right to inquire about how the White House is using power Congress has granted it. Again, even if we assume no felonies were committed, the questions Congress is asking should still be asked. And if it were me asking the questions, you damn well better believe I want a record of what was said -- I wouldn't want any "that's not what he/she said" or "that's not how they meant it" in the aftermath; I suspect that's exactly what the White House DOES want.
3.21.2007 10:05pm
neurodoc:
"I'm still wondering how he got my vote the first time ..."

Palm Beach voter? :)


No resident of Palm Beach County who voted for Bush in 2000 can blame the infamous "butterfly ballot." That poorly designed ballot form undoubtedly resulted in votes going to Buchanan that were intended for Gore, advantaging Bush the same way a vote for him would have. But those who marked their ballot for Bush then did so knowingly.
3.21.2007 10:08pm
Mark P (mail):

As I see it, the key point here is that Congress has statutory control over the rules governing how open U.S. Attorney spots are filled. Although firing the U.S. Attorneys was not a crime, Congress has a legitimate oversight interest in learning about how the Executive has used the power Congress has granted it. Why the U.S. Attorneys were fired seems to be directly relevant to that; Congress has a good reason to want to know if loosening the rules led to replacements of U.S. Attorneys for reasons that are not based on legitimate law enforcement concerns.


I'm sorry; I've read this over about four times and I think I must have lost my marbles because it still doesn't make sense.

1. The Congress amended the statutes to permit the Administration to fill U.S. Atty spots that open up during a term until the Administration succeeds in getting a permanent successor confirmed by the senate. This is in comparison to the old system, under which the interim appointee had 120 days, by the end of which a permanent successor would be tapped by the District Court.

2. Congress, having thus granted the Administration expanded powers to put in place "interim" US Atty's whose terms of service could actually last through the end of a President's term, has the right to supervise how that expanded power is being put to use.

So far, so good.

But what does this have to do with why the incumbent US Atty's were removed? If the power granted by Congress is to appoint a quasi-permanent successor US Atty, why shouldn't Congress's oversight be directed to--in fact, limited to--how those replacements were chosen? Congress didn't "grant" the President the power to fire U.S. Atty's, did it? So how is it again that Congress has any legitimate business investigating why the US Atty's were fired?
As best I can tell, Congress would be within its rights to demand to know how Karl Rove's buddy got served up as the replacement US Atty in Arkansas. Beyond that, this whole thing strikes me as nothing more than classic political theater.

I still think A.G. is a lightweight and a menace to the Administration who ought to have the decency to yield his seat to someone with gravitas and competence on par with Fred Fielding. But the idea that this is a good test case for Congress to try and whittle down executive privilege strikes me as just nutty.

I don't usually find myself disagreeing so strongly with OK's posts. What am I missing?

[OK Comments: Mark P, I don't follow; the U.S. Attorneys were fired and replaced all in one action. There would be no new interim U.S. Attorneys without the removals, so you can't break it down that narrowly. It's like trying to watch your weight without paying any attention to what you're eating.]
3.21.2007 10:25pm
but see (mail) (www):
Orin:

You said: "No one suggests that forcing them to resign was illegal...."

Did you see Adam Cohen's op-ed in the NYTimes? He seems to think that forcing them to resign "may have been" unlawful.
3.21.2007 10:25pm
Reg (mail):

No one questions the President's legal authority to force the U.S. Attorneys to resign. No one suggests that forcing them to resign was illegal or is demanding their reinstatement.


What newspapers are you reading? The coverage of this relentlessly implies that something illegal took place. Have any democrats said that they only want to know why the attorney's were fired? The commenters here are especially inventive. Justin's offered scenario wins the award for the most unfounded speculation I've seen yet.

An aside, the Republicans went after Hillary Clinton for lying about the firings of travel office employees (all non-political positions by the way) so Dems going after false testimony seems fair. Is there any evidence yet (not groundless conjecture) showing Gonzalez had information contradicting his testimony to suggest he knowingly gave false testimony to Congress?
3.21.2007 10:29pm
rarango (mail):
tangential but related I think: the over and/or missuse of the word "lie." It is entirely possible to be mistaken under oath. I have absolutely no idea of what constitutes the definition of perjury; but, I suspect it involves something like intent to deceive. And intent to deceive is the common understanding of the word lie. If anyone, of either party, testifies under oath and honestly believes what they are saying is true, is it a lie? or is it a mistake? One hell of a lot of commenters assume mistakes are are, or have to be lies, which, I think, is a very bad assumption and says far more about the mindset of the accuser than it does about the accused.
3.21.2007 10:42pm
Yankee_Mark:
Congress is free to hold hearings and investigations to determine such things as: Whether the contours of powers granted are appropriate to the need, Whether discretion has been abused in the Executive's use of such powers, Whether the requirement for these powers still exists, If Congress needs to clarify/modify powers, etc.

Hearings need not be designed to identify/punish criminal acts nor to determine whether laws have been broken in order to be within the prerogative of the Legislative Branch. It is a good thing to see these attempts at checks &balances that have been absent during the past several years of one party rule.
3.21.2007 10:48pm
Duffy Pratt (mail):

Congress didn't "grant" the President the power to fire U.S. Atty's, did it?


As a matter of fact, it did. The U.S. Attorney is an office created by statute. Congress gave the President the power to fire U.S. Atty's in 28 U.S.C. 541(c). As such, an inquiry into why some firings occurred should fall within Congress' oversight responsibility.
3.21.2007 10:51pm
Justin (mail):
Reg,

The point of my scenario was to question Orin's assertion that without investigation we can conclude that no laws were broken. While I agree with much of Orin's post, I simply think that point is way too premature.
3.21.2007 10:55pm
Mark P (mail):
Duffy:

Thank you for the reference. If I may take the opportunity to revise and extend... :->

You're correct in that the statute says each US Atty is "subject to removal by the President." But I found nothing in that statute (or in any related sections) indicating that Congress listed acceptable firing criteria or otherwise imposed any limits on the President's power to fire US Atty's.

In comparison, the recent statutory change that Orin's talking about deals with the President's power to appoint replacements, and makes material changes to that power. The Congress has a legitimate oversight claim on how that appointment power is being used. I don't see how they have any grounds to investigate how the firing power has been used, since it's a blank check.
3.21.2007 11:11pm
uh_clem (mail):
Two quick points:

1) It is entiely premature to say whether anything illegal happened or didn't happen. Until we get the 18 days of missing emails and straight answers from the participants, that remains an open question. Let's investigate and follow the facts.

2) Unlike the Libby trial that we all just witnessed, the bar for congressional investigation is not illegality. For instance, if a program may be a waste of money it is within Congress's purview to oversee that program and ask pointed questions to determine if it is effective - it's not required to allege that someone's breaking the law in order to engage in oversight. In the present case, we don't even know who made the decision to replace the attorneys - Bush and Gonzales were "out of the loop" according to public pronouncements - let alone the relevant factors in the decision making process.
3.21.2007 11:15pm
lesliek:
If an office holder has the statutory power to dismiss another office holder who holds his office "at pleasure", would a purported exercise of that power in bad faith (assuming that could be established) be valid in American administrative law or would the power to dismiss be read as having a little bump in it that excluded a bad faith exercise of the power?
3.21.2007 11:20pm
TMac (mail):
"An aside, the Republicans went after Hillary Clinton for lying about the firings of travel office employees (all non-political positions by the way) so Dems going after false testimony seems fair. Is there any evidence yet (not groundless conjecture) showing Gonzalez had information contradicting his testimony to suggest he knowingly gave false testimony to Congress?"

I wasn't aware that Hillary was part of the executive or any other branch of the government. I suppose if the President had fired the USA's and then sicked the FBI on them to cover up the firing, an investigation would be in order.
3.21.2007 11:35pm
Reg (mail):

would a purported exercise of [the power to dismiss 'at pleasure' in bad faith (assuming that could be established) be valid in American administrative law


I don't understand the question. What would be the bad faith in dismissing one for political reasons, when the WH has the power to dismiss for political reasons? Bad faith has different definitions depending on the context, and more explanation might make it easier to answer your question.
3.21.2007 11:35pm
Mark Field (mail):

The Congress has a legitimate oversight claim on how that appointment power is being used. I don't see how they have any grounds to investigate how the firing power has been used, since it's a blank check.


It seems to me that these two powers are intertwined. If the President abuses the power to fire, that might justify taking the power away (assuming that's Consitutional under Meyers). It might also justify changing the way appointments are handled, e.g., by requiring Congressional approval of the replacements.
3.21.2007 11:37pm
Mahan Atma (mail):
<blockquote>
<i>I wasn't aware that Hillary was part of the executive or any other branch of the government.</i>
</blockquote>

Then you weren't aware that a federal court said so.

I'll post the cite tomorrow, when I can get to my law books.
3.21.2007 11:45pm
Mahan Atma (mail):
I wasn't aware that Hillary was part of the executive or any other branch of the government.



Ah, but she was.

See In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910 (8th Cir. 1997), denying Clinton's assertion of privilege, I might add.

Ironic, isn't it?
3.21.2007 11:53pm
Bob from Ohio (mail):
Executive Privilege is a balancing act between Congressional interests and Executive interests. Do the Congressional interests that Orin identifies outweigh the Executive interest of private advice to the President? That is the key issue for a court to decide.

If the President pushes this, it could well go before the Supreme Court. The few cases there are do not resolve it either way. Anyone who says that it is clear which side would legally win, is just kidding themselves.

However, if you look at the history of these tussles, usually there is a sufficent compromise worked out and testimony occurs. We are at the chest beating stage now so it is too early to tell.
3.22.2007 12:16am
uh_clem (mail):
You guys gonna rehash travelgate all night, or are you gonna deal with the topic at hand?

When somebody can explain how Bush can simultaneously be "out of the loop" and didn't "sign off on the firings" and yet be the sole decision maker on who serves I'll listen.

Reminissing about the good old day when Bubba was gettin' action in the oval office just doesn't pique my interest.
3.22.2007 12:20am
Mahan Atma (mail):
When somebody can explain how Bush can simultaneously be "out of the loop" and didn't "sign off on the firings" and yet be the sole decision maker on who serves I'll listen.


That's easy: Bush routinely makes decisions without any basis for them.
3.22.2007 12:28am
MnZ (mail):

It seems to me that these two powers are intertwined. If the President abuses the power to fire, that might justify taking the power away (assuming that's Consitutional under Meyers). It might also justify changing the way appointments are handled, e.g., by requiring Congressional approval of the replacements.


Hmmm...I had forgotten that there is precedent for impeaching a President for firing a member of the executive branch. Maybe Democrats are trying to avenge the Republican's mistreatment of Andrew Johnson. (However, they apparently to forgot to reinstitute the Tenure of Office Act.)
3.22.2007 12:33am
BruceM (mail) (www):
Just because Congress has not passed a law making certain action expressly illegal does not make that action right. And Bush can't keep saying "no laws were broken" if he's going to refuse to allow members of his staff to testify in response to congressional subpoenas. Can't have it both ways. Why is Bush worried about "show trials" if nobody broke any laws?

Firing a prosecutor (especially a U.S. attorney who has a tremendous amoung of power and is supposed to be independent in his use of prosecutorial discretion) for not being a loyal enough partisan hack is simply WRONG. Just because Title 18 of the US Code doesn't have a section entitled "Unlawful firing or influence of U.S. Attorneys for parisan or political reasons" does not mean it was okay, let alone justify it.
3.22.2007 12:38am
Lev:
]Until 2006, a replacement interim U.S. Attorney was permitted to serve only up to 120 days. After that, Congress required the district court to name a replacement interim U.S. Attorney. See 28 U.S.C. 546 (pre-2006 version). In 2006, Congress amended this law in the legislation generally known as the Patriot Act reauthorization law (not the actual Patriot Act of 2001, but the reauthorization in 2006). As amended in Section 502 of that law, a person appointed as U.S. Attorney on an interim basis "may serve until the qualification of a United States Attorney" through the usual Senate confirmation process.

I don't get that. What the heck business do judges, members of the judicial branch, have naming prosecutors, temporary or otherwise, who are members of the executive branch?

Why isn't the Patriot Act Reauthorization viewed as correcting an obvious violation of separation of powers?
3.22.2007 12:52am
Ozzielaw (mail):

OK Comments: Mark P, I don't follow; the U.S. Attorneys were fired and replaced all in one action. There would be no new interim U.S. Attorneys without the removals, so you can't break it down that narrowly. It's like trying to watch your weight without paying any attention to what you're eating.


I thought only one replacement had been named, the guy in Arkansas who has since resigned? Did I miss something in the over-hyped reporting?

As a former Assistant U.S. Attorney, who began her tenure a few months before Pres. Clinton fired all the U.S. Attorneys in 1993, I find all this discussion remarkably ill-informed about how the offices work. It's the assistants who prosecute the cases, not THE U.S. Attorney, and those assistants will continue to do their jobs as US Attys wander in &out. The US Atty sets policy for the office, but he or she inherits all the old assistants, more and more of whom these days are career prosecutors. I can guarantee you that if the AUSAs actually handling the prosecutions believed that they were getting unethical pressure to shut down good investigations or pursue bad cases, they would resign en masse. US Attys come &go, but assistants are the backbone of the office, and are not easily intimidated.

In 1993, for example, the firing of all of the US Attys didn't slow down any prosecutions. DOJ (or what was left of it) simply appointed various Assistants as interim U.S. Attys, and the White House gradually appointed successors. In some, mainly rural districts, it took as long as 3 years to get the new appointments made. It also took quite a while to get the higher level DOJ positions filled. It made relatively little difference in the field offices, where the work went on with very few glitches.
3.22.2007 1:04am
Bruce Hayden (mail) (www):
Firing a prosecutor (especially a U.S. attorney who has a tremendous amoung of power and is supposed to be independent in his use of prosecutorial discretion) for not being a loyal enough partisan hack is simply WRONG. Just because Title 18 of the US Code doesn't have a section entitled "Unlawful firing or influence of U.S. Attorneys for parisan or political reasons" does not mean it was okay, let alone justify it.
Wrong? You may not like it, but why wrong? Personal beliefs about right and wrong don't really have that much to do with the dispute.

Was it illegal? Doubtful. Can Congress investigate? Sure. Can they do much of anything else? Again, doubtful. Can they force Administration members to testify under oath? Debatable, given the President's stated position. Some think strongly yes, some strongly no. But you still have the problem of who is going to enforce any subpoenas, etc. against the head of the agency that would have to enforce them, even if you can get Judicial buy-in.

I think that the reality is that Congress' approval ratings are lower than the President's right now, and have dropped notably since the election. His may go down some more, and theirs are liable to do so too. The difference is that he isn't running for election in 2008, and many of them are.

Also, there are indications that at least some of the USAs were fired because they weren't agressive enough in carrying out Administration (or AG) priorities. Remember, the USAs are not elected, as compared to your run-of-the-mill DAs. Rather, they are appointed in a fairly political process. Why should they have as much prosecutorial discretion as an elected DA? They are DoJ employees. Yes, a bit different from most DoJ employees, but employees non the less. And, indeed, your suggestion would seem to be that they should have unfettered discretion, regardless of the will of the President who hired them and at whose sole discretion they serve. Remember, it was the President who was elected, not the USAs.
3.22.2007 1:17am
Reg (mail):

Firing a prosecutor (especially a U.S. attorney who has a tremendous amoung of power and is supposed to be independent in his use of prosecutorial discretion) for not being a loyal enough partisan hack is simply WRONG.


It depends on what you mean by not being partisan. The attorney is supposed to be partisan in that he is to pursue the priorities of the president. The attorneys aren't independent executives making independent decisions about what types of case to use the office's limited resources on. If the president says to thoroughly investigate and pursue cases of voter fraud and corruption, and the US attorney says, gee, I think my office is better used to go after deadbeat dads and marijuana distribution, there is nothing problematic with firing the guy.

On the other hand, if the president said bring bogus charges aganist Democrats and ignore all Republican corruption, that would be a problem. But I haven't heard anything to suggest that is what happened.

Also, I think it is problematic for Congress to use its subpoena powers to harass executive officials for purely partisan purposes. (unfortunately, it seems congressmen from both parties act only out of partisan purposes.) The more I read about this case, the more it looks like that's what the Democrats are doing.

These problems are political issues for the branches to negotiate and work out between themselves. If they can't do it, it's up to the electorate to decide who they trust to carry out the duties of their respective offices.
3.22.2007 1:17am
Mike G in Corvallis (mail):
And Bush can't keep saying "no laws were broken" ...

Perhaps he could say, "There is no controlling legal authority!" instead. It worked for Gore.

I'm a little perplexed: Several of the people posting here seem to think that Congress can impeach on any grounds if it wants to, that the President in effect serves at the pleasure of Congress and can be "fired" with or without cause. Yet the last time a President was impeached, a lot of people on the left side of the aisle raised a big fuss over whether the illegality of the then-President's actions cleared the bar of sufficient illegality to fall under the "high crimes and misdemeanors" language of Article II Section 4 of the Constitution ... taking the attitude that Congress couldn't impeach a President if his actions were only a little illegal. What's it going to be then, eh?
3.22.2007 1:20am
Mahan Atma (mail):
You may not like it, but why wrong?


Only in the same way it was wrong to put Brownie in charge of FEMA.
3.22.2007 1:31am
just passing by (mail):

On the other hand, if the president said bring bogus charges aganist Democrats and ignore all Republican corruption, that would be a problem. But I haven't heard anything to suggest that is what happened.


Under the Bush administration 90% of corruption charges have been against Democrats.

One of the USAs (from Washington) was fired after complaints that he hadn't pressed charges of voter fraud after a Democrat won the gubernatorial election. He has said those charges would have been bogus.

Do a little research before you make assertions about the evidence.
3.22.2007 1:45am
Duffy Pratt (mail):
Mark P:

The purpose of a Congressional investigation is not to determine whether a law has been broken, but whether it should be changed.
3.22.2007 1:59am
uh_clem (mail):
On the other hand, if the president said bring bogus charges aganist Democrats and ignore all Republican corruption, that would be a problem. But I haven't heard anything to suggest that is what happened.

If you haven't heard anything to suggest that is what happened, you haven't been paying attention. Whether you believe the people making the charge is another matter, but the charge has been made fairly clearly. David Iglesias is a prosecutor by profession and knows how to write an indictment. It's here.

You can dispute whether he's proven his case, but you can't dispute its existence.
3.22.2007 2:04am
dvorak:
The purpose of a Congressional investigation is to get testimony they can use to Libby some more members of the Bush administration. (Hmmm, should I verbalize Scooter instead? 'He got Scootered, he got Libbied' tossup)

Btw, I keep seeing this 90% number tossed around. Does anyone have a list of the actual people? Mark Foley, Duke Cunningham, Tom Delay aren't Democrats so I'm curious who and what crimes make up this 90%.
3.22.2007 2:09am
Baseballhead (mail):
Btw, I keep seeing this 90% number tossed around. Does anyone have a list of the actual people? Mark Foley, Duke Cunningham, Tom Delay aren't Democrats so I'm curious who and what crimes make up this 90%.

The 90% refers to investigations, not crimes.
3.22.2007 2:28am
Pantapon Rose (mail):
Mike G: 'Yet the last time a President was impeached, a lot of people on the left side of the aisle raised a big fuss over whether the illegality of the then-President's actions cleared the bar of sufficient illegality to fall under the "high crimes and misdemeanors" language of Article II Section 4 of the Constitution ... taking the attitude that Congress couldn't impeach a President if his actions were only a little illegal. What's it going to be then, eh?'

And probably the same people weren't bothered when Clinton fired all 93 USAs as cover for removing two who were investigating business transactions involving the Clintons and corrupt Dem Congressman Rostenkowsi's bribes. Or when Reno repeatedly abused her power, for example, refusing to act against Al Gore's illegal fundraising at a Buddhist temple.

If this Dem. Congress thinks it was elected to pursue the left's wish-fulfillment fantasies, they're going to see their approval rating plummet.
3.22.2007 2:42am
Alcyoneus (mail):
I don't get this. I thought the branches of government were co-equal.

It seems that every decision of the President is subject to Congressional "oversight," but no decision of the Congress is subject to Executive oversight. For example, there is no "oversight" that the Executive can exercise to "investigate" the politically motivated pork-barrel amendments to the defense spending bill.

Whatever happened to the Executive imperatives of "secrecy and despatch" that Madison wrote about. What the hell does 'co-equal' mean anymore?
3.22.2007 3:43am
Kovarsky (mail):
for the record there are at least two (maybe three) potentially criminal acts here (from balkinization):

(1) a "corruption of" violation under 18 U.S.C. 1501, et seq; and

(2) violation of constitutonal requirement to faithfully execute

but congress can hold hearings if those hearings are necessary to determine whether a crime happened. and they can issue subpoenas to do that. and the president can offer a bargain to try to avoid a special prosecutor. and he can try to assert privilege in the event that a special prosecutor is appointed. and the supreme court may or may not (close call) uphold privilege in that situation.

i think that's why congress can "investigate" and why bush wants to avoid asserting privilege at all costs. either having rove and miers go in front of congress or refusing to and being subject to the investigation of a special prosecutor would put him in that position.

of course he could refuse to appoint a special prosecutor and more or less inflict a mortal wound on the republicans....
3.22.2007 3:55am
Brian K (mail):
Alcyoneus,

It's called a veto. The FBI and DOJ/US Attorneys also investigate corruption or other illegal acts by members of the congress.


Mike G,

"Yet the last time a President was impeached, a lot of people on the left side of the aisle raised a big fuss over whether the illegality of the then-President's actions cleared the bar of sufficient illegality to fall under the "high crimes and misdemeanors" language of Article II Section 4 of the Constitution ... taking the attitude that Congress couldn't impeach a President if his actions were only a little illegal. What's it going to be then, eh?"

That's what happens when the republicans lower the bar. i wonder why conservatives are shocked to find that democrats would use the very same tactics that they used against them. certainly a group of people whose first line of defense is "but clinton did it" should understand that.
3.22.2007 5:12am
Public_Defender (mail):
You said: "No one suggests that forcing them to resign was illegal...."

Did you see Adam Cohen's op-ed in the NYTimes? He seems to think that forcing them to resign "may have been" unlawful.


On of Cohen's claim is that telling the ex-USA's that they would be accused of bad performance if they testified in a way the administration didn't like could be intimidation of a congressional witness. Corporate defense attorneys could be prosecuted if, in a corroption case, they called an ex-employee/prosecution witness and said, "If you testify __________________, we will publicly declare that we fired you for cause."
3.22.2007 5:22am
Brett Bellmore:

The 90% refers to investigations, not crimes.


No, actually the 90% refers to news accounts of investigations; The researchers got their "data" by examining news accounts since Bush took office. And we have no reason to suppose that news accounts are a representative sample of investigations.

Actually, given the nature of some of the mistakes they made, we don't have a lot of reason to suppose that the people doing that "study" were even trying for a representative sample. It appears to have been a political hit piece.
3.22.2007 7:43am
Al Maviva (mail) (www):
So we're suggesting that the courts should be able to review the motivations behind political appointee firings - y'know, to sort out which ones are righteous, and which ones are not, and we're starting from the presumption that politically motivated firings of political appointees is beyond the pale?

Somehow, I don't agree with how this question is being framed. It seems to me that if you agree that the motivations for firing (or failing to renew the employment of) political appointees must be for good cause (and low, awful, evil 'political motivation' does not count as good cause), you change the fundamental nature of political appointments.
3.22.2007 8:39am
Reg (mail):

Under the Bush administration 90% of corruption charges have been against Democrats.

One of the USAs (from Washington) was fired after complaints that he hadn't pressed charges of voter fraud after a Democrat won the gubernatorial election. He has said those charges would have been bogus.



Maybe Democrats commit 90% of corruption. Who controls elected offices in Gary, New Orleans, and New Jersey? I remember quite a few Republicans being indicted though: Cunningham, Ney, Governor Ryan.

And I don't remember Iglesias saying what that about the fraud cases, I thought he said they would be too hard to prove. (but I might be thinking of a different US attorney) I thought there was some evidence of fraud.
3.22.2007 9:53am
Anderson (mail):
Since Prof. Kerr's take on the affair is quite similar to my own, he is probably mistaken ....
3.22.2007 10:28am
BruceM (mail) (www):
There are plenty of other investigations into democrats (politically active ones, not just the drug dealer who happens to have voted for Clinton) which have not made the news. About a year ago I my client met with the FBI to voluntarily be interviewed regarding possible criminal acts (financial stuff, not drugs/murder) of a prominent Texas Democrat (won't say who). The government wanted to prosecute her and was talking to people close to her to dig stuff up. This investigation is still ongoing, so far as I know (he/she has not been prosecuted yet). There are investigations of democrats the public does not know about. I have a feeling they were not investigating any Republicans. The US Attorney for the SDTex was obviously political enough and a loyal enough "Bushie" to not have his job in danger. That says a lot now.
3.22.2007 11:07am
MnZ (mail):

On of Cohen's claim is that telling the ex-USA's that they would be accused of bad performance if they testified in a way the administration didn't like could be intimidation of a congressional witness. Corporate defense attorneys could be prosecuted if, in a corroption case, they called an ex-employee/prosecution witness and said, "If you testify __________________, we will publicly declare that we fired you for cause."


Public Defender, that is exactly how Executive Privilege operates. If I remember right, that is precisely how Eisenhower prevented members of his administration from testifying before McCarthy's kangaroo court.

Let's be clear. Congress is not a court, and a presidential administration is not a corporation.
3.22.2007 11:21am
JRNev (mail) (www):
Seems that Congress has too much time on its hands. When we have reports about U.S. Attorneys bringing cases which should not be brought or not bringing cases which should be, then there is something to examine.

If Congress isn't going to do anything useful, like fixing Social Security, then maybe they should spend more time with the people they represent.
3.22.2007 11:28am
BruceM (mail) (www):
JRNev: A republican administration using the FBI and other investigative arms to investigate members of the democrat party (see the 90% figure described and cited above many times) but not the republican party (and being punished for not going after enough democrats or having the gall to go after a republican) is simply improper, one step removed from actually prosecuting the democrats. The dept of justice is not supposed to be the SS. It is not there to destroy the political party not in power. It is not there to be used to smear the enemies (or non-friends) of the President. Such action should be investigated.
3.22.2007 11:49am
markm (mail):
Corporate defense attorneys could be prosecuted if, in a corroption case, they called an ex-employee/prosecution witness and said, "If you testify __________________, we will publicly declare that we fired you for cause."


But prosecuting attorneys can call a defense witness and say, "if you testify, we'll send you to prison" and it's all legal.

As for the "no laws were broken" argument, I think the only way that can be true is if federal officials have made sure that they don't have to obey the same laws as the rest of us. Otherwise, they'd probably be breaking some law every day, whatever they did or didn't do...
3.22.2007 11:53am
MnZ (mail):

A republican administration using the FBI and other investigative arms to investigate members of the democrat party (see the 90% figure described and cited above many times) but not the republican party (and being punished for not going after enough democrats or having the gall to go after a republican) is simply improper


I have lived in Democrat-dominated areas and Republican-dominated areas. I have found an odd dichotomy in them, regardless of who the President is at the time. In Republican areas, corruption charges seem to be handled in the state courts while, in Democrat areas, they seem to be handled in the federal courts.

The 90% figure would only be telling if (a) it is gathered in a reliable way and (b) there was a structural break when Bush came into office.
3.22.2007 11:58am
JRNev (mail):
BruceM: I hope you mean "any administration using the FBI and other investigative arms to investigate members of any other party but their own is simply improper". I would hope no one would support such a partisan party, especially for executive office.

But this seems debatable while, ironically, the investigation sees to be very partisan.
3.22.2007 1:35pm
Nikki:
But prosecuting attorneys can call a defense witness and say, "if you testify, we'll send you to prison" and it's all legal.

markm: wha? Wouldn't that be tampering with a witness, and very much not "all legal"?

What a prosecutor can do is say "If you don't testify, we'll prosecute you for [thing we think you did], or send you to prison to contempt of court." Is that what you meant, or am I missing something?
3.22.2007 7:43pm
Elliot123 (mail):
Perhaps someone could offer evidence that the attorneys were fired for not being "excessively partisan" as Orin claims, or "partisan hacks" as BruceM claims?
3.22.2007 8:59pm
vic:
Justin's offered scenario wins the award for the most unfounded speculation I've seen yet. That would be about par for the course.

Kudos to Ozzielaw for a no nonsense succint account of how a USa office actually functions.
3.23.2007 12:28am
Public_Defender (mail):
Assertion: On of Cohen's claim is that telling the ex-USA's that they would be accused of bad performance if they testified in a way the administration didn't like could be intimidation of a congressional witness. Corporate defense attorneys could be prosecuted if, in a corroption case, they called an ex-employee/prosecution witness and said, "If you testify __________________, we will publicly declare that we fired you for cause."



Response 1: Public Defender, that is exactly how Executive Privilege operates. If I remember right, that is precisely how Eisenhower prevented members of his administration from testifying before McCarthy's kangaroo court.

Let's be clear. Congress is not a court, and a presidential administration is not a corporation

Response 2 (from a different reader): But prosecuting attorneys can call a defense witness and say, "if you testify, we'll send you to prison" and it's all legal.

As for the "no laws were broken" argument, I think the only way that can be true is if federal officials have made sure that they don't have to obey the same laws as the rest of us. Otherwise, they'd probably be breaking some law every day, whatever they did or didn't do...


How is it exeutive privilege to say that you will tell defamatory lies if a former executive employee testifies truthfully?

As to the other point, Professor Kerr can probably explain this in more detail, but prosecutors have to be careful when threatening perjury charges against defense witnesses. If the prosecutor gets too aggressive, the prosecutor can get into ethical trouble and affect the due process rights of the defendant.

But this is a different case. It's now pretty darned clear that the reason for the firings were political, not performance. Certain political reasons for firing are acceptable, but the administration was lying when it said the reason was performance.
3.24.2007 6:59am
markm (mail):
"prosecutors have to be careful when threatening perjury charges against defense witnesses." Careful to do this is subtle ways rather than openly, that is. In the Enron cases prosecutors implied that there were about a hundred more people involved that they had declined to indict, and defense witnesses became hard to come by. In criminal prosecutions, the reverse form of this, agreeing not to prosecute someone in return for favorable testimony, is standard operating procedure, and it's difficult for the defense to even expose the full extent of such deals in court. In the Duke lacrosse team case, Mike Nifong threatened the cab driver who picked up the alleged victim into changing his testimony - and IIRC, that's one thing that didn't get into the bar complaint...
3.24.2007 9:40am
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