Thoughts, essays, and writings on Liberty. Written by the heirs of Patrick Henry.

“The purpose of separation of church and state is to keep forever from these shores the ceaseless strife that has soaked the soil of Europe with blood for centuries.”     James Madison

March 21, 2007

A Retraction On The United States Attorneys Story

by Doug Mataconis

Last week, I wrote this post attempting to argue why the story surrounding the firing of eight United States Attorneys was something that needed to be looked into.

Well, I completely blew that one.

I’ve followed this story as best I can, including today’s story that subpoenas will be issued to top White House aides, and this much has become clear:

1.    United States Attorneys have always served at the pleasure of the President. Traditionally, when a new President takes office, each sitting U.S. Attorney hands in their resignation and the incoming Administration makes the hiring decision regarding their replacement. It happens every 4-8 years like clockwork. Sometimes, a particular U.S. Attorney may stay on, especially if there wasn’t a change in the President’s political party during the preceding election, but that has always been the choice of the President and Attorney General.

2.     When Congress passed the PATRIOT Act, which I personally consider ill-advised but it is still the law of the land, it included provisions that expanded the ability of the President and Attorney General to remove a sitting U.S. Attorney and replace him on an expedited basis. It was under this statutory provision, as I understand it, that the eight firings were made.

3. There is no evidence that any of the dismissed prosecutors were removed because they were pursuing something that the Administration wanted covered up. For the most part, they were removed because they were not pursuing investigations that the Administration, or Republican Congressional leaders, wanted to see pursued. This may be improper in some sense of legal ethics, and maybe we should change the law so that prosecutors are immune from these political considerations, but it is not illegal.

Given all of this, it’s pretty clear that there really isn’t a scandal here, although the media has already started using that word. Before long, I’m sure we will start calling this whole thing “Attorney-gate” or something like that.

If it’s not a scandal, then what is it ?

Politics, pure and simple. The Democrats in Congress are behaving toward the Bush Administration precisely the same way that the Republicans did toward Bill Clinton, holding hearings to investigate every little story coming out of the White House.

It may well be that there are things that this President has done that deserve to be investigated. I’d like someone to look into what the heck went wrong with intelligence in the months before the Iraq War. And the whole issue of domestic surveillance without a warrant is something not even the Democrats are touching with a ten foot pole.

But don’t waste our time with this non-scandal.

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18 Comments

  1. Well that’s idiotic.

    1. Replacing ALL attorneys at the beginning of a term as a standard procedure bears no resemblance to replacing a few attorneys mid-term for potentially illegal political reasons.

    2. That provision was snuck in by an aide for dubious reasons and was overturned 92-4 yesterday because it was abused.

    3. Carol Lam had just gotten an indictment against Duke Cunningham and was investigating senior CIA people, who complained, and she was removed. That is obstruction of justice, a felony.

    You appear to genuinely not know any of this, so now you do.

    Comment by Alex — March 21, 2007 @ 4:34 pm
  2. Doug, the White House can’t keep its stories straight. The excuses about performance related seem confusing given that there is so far no evidence of performance reviews. Rove’s excuse about a lack of attention to illegal immigrants is confusing given the facts of half of the attorney’s office devoted to such cases. That a number of these Attorneys were focusing on cases involving Republicans seems very fishy, and so far the White House hasn’t been able to answer why they fired them.

    Comment by LoganFerree — March 21, 2007 @ 5:27 pm
  3. Logan,

    If the USA’s can be fired for any reason, then why does the reason they were fired matter under the law ?

    Comment by Doug Mataconis — March 21, 2007 @ 5:50 pm
  4. Alex,

    1. Whether there is a precedent for mid-term replacements or not is irrelevant. If the law allows it, which is certainly seems to, then the fact that it hasn’t been done before is irrelevant.

    2. One could say the same thing about many pieces of legislation. Nonetheless, it passed. If Congress doesn’t like it, they can try to change the law.

    3. Umm, Cunnigham was convicted and that former CIA official Kyle “Dusty” Foggo, along with his best friend, defense contractor Brent Wilkes, are currently facing fraud charges. Where is the obstruction ?

    Comment by Doug Mataconis — March 21, 2007 @ 5:54 pm
  5. I think that Congress’s role as providing oversight of the executive gives it justification to wanting to know why people were fired.

    And if the US Attorneys were fired to prevent the prosecution of Republicans and their friends, might that not bring on the possibility of obstruction of justice?

    Comment by LoganFerree — March 21, 2007 @ 6:15 pm
  6. Logan,

    But there wasn’t any prevention of prosecution. Duke Cunningham was sentenced to prison

    Just this past February, after Lam was fired Foggo and two others were indicted.

    Where’s the obstruction ?

    Comment by Doug Mataconis — March 21, 2007 @ 6:25 pm
  7. I agree that the Dems aren’t being fair here – every presidential changes usually goes along with a massive US attorney turnover.

    However, those firings are at the pleasure of the PRESIDENT, not his party. As one of the fired attornies said today in the NYT, they were told to be Non-Partisan in there work. This represented at attempt to inject partisanism, and I can’t agree with that.

    Comment by Will — March 21, 2007 @ 6:45 pm
  8. Doug,

    This very well may be a legitimate scandal, even if no laws were broken. I agree we’re seeing a lot of political grandstanding, but as for a scandal? Let’s look at the dictionary.reference.com definition of scandal:

    1. a disgraceful or discreditable action, circumstance, etc.
    2. an offense caused by a fault or misdeed.
    3. damage to reputation; public disgrace.
    4. defamatory talk; malicious gossip.
    5. a person whose conduct brings disgrace or offense.

    I think 1, 2, and 5 may apply here. As I pointed out a month ago, these fired attorneys had all had recent positive job evaluations. According to the WaPo story I linked then, the original story from the administration was that they were fired due to poor job performance. Your own thoughts last week mention that they were fired in many ways because they were trying to exercise their traditional discretion over which cases they prosecute, and yet the current “cause” of their firing was that the AG’s office was trying to push them into certain cases.

    Whether it was illegal, I’ll leave to the lawyers to figure out. Whether it’s disgraceful, or brings offense, I would suggest that it does. It may merit a scandal, even if it does not put someone behind bars.

    Comment by Brad Warbiany — March 21, 2007 @ 9:05 pm
  9. Doug, the initiation of firing Lam started before Cunningham was finally sent off to jail.

    Comment by LoganFerree — March 21, 2007 @ 9:19 pm
  10. Brad,

    You may well be right, but does any of that justify a Congressional inquiry, with witnesses under lights and cameras while Senators and Congressman read statements drafted by their aides expressing how outraged they are at the conduct of the Administration/the Democrats (depending on which party said politician is affiliated with) with regard to this matter ?

    This might have been inappropriate, but it wasn’t illegal. And that, I think, makes a huge difference.

    Comment by Doug Mataconis — March 21, 2007 @ 9:46 pm
  11. Logan,

    Perhaps.

    But it also happened after Cunningham was indicted and pled guilty, and before his co-conspirators were indicted.

    If obstruction of an ongoing investigation was really the goal, one would think that nothing would’ve happened after Lam was fired. Since that wasn’t the case, then the Cunningham case obviously had nothing to do with it.

    Comment by Doug Mataconis — March 21, 2007 @ 9:48 pm
  12. Doug, I agree with your position, once it’s clear that these positions “serve at the pleasure of”, it’s clear they can be fired at any time and having a good job evaluation really has no bearing on it. For me what bothered me most was the pretense that almost every hiring and firing in government is not politically motivated. That’s exactly why Presidents typically remove those that they do not feel will support “their” view and it is one of the important facets of having control of the Whitehouse gives to that particular party. It is done to influence policy and I find this whole “shock” and the demands for an investigation by the Democrats to be just as politically motivated as the firings were.

    Comment by Lisa Renee — March 21, 2007 @ 11:32 pm
  13. Legally, political appointees serve at the pleasure of the President. Doug has pointed this out multiple times. That leaves us with this.

    1. The White House and Justice are incredibly inept in handling the media and Congress (as we have seen numerous times over the past few years).

    2. Congress has no business in this matter unless there is evidence that a crime has been committed. At this point there is none.

    3. If the Executive Branch caves to Congress on this, they will undermine an important check & balance in the Constitution, the independence of the Executive from Congress in the daily administration of their Constitutional duties.

    4. This is a major play by the Democratic Congress to take Bush from Lame Duck to end of Presidency two years early.

    Comment by Adam Selene — March 22, 2007 @ 10:24 am
  14. Adam,

    Good points.

    I’d add another:

    5. If the Bush Administration handled this story right from the beginning, they probably wouldn’t be in this mess.

    Comment by Doug Mataconis — March 22, 2007 @ 2:07 pm
  15. If the Executive Branch caves to Congress on this, they will undermine an important check & balance in the Constitution, the independence of the Executive from Congress in the daily administration of their Constitutional duties.

    Then we’re screwed. Bush will fold like an accordian.

    Comment by Kevin — March 22, 2007 @ 2:41 pm
  16. Doug,

    I think you hve it pretty much correct. I agree with Brad that we can not like what the president did. I don’t think it is a legal scandal and the congress should butt out. Some people claim that because there “might” be a legal issue they should investigate it. That is a dangerous precedent as theoretically, if there is no evidence of illegal behavior, under that standard every action taken by anyone in Washington can bog us down in investigations.

    Logan,

    Not only were Cunningham and the other cases supposedly leading to her firing under the obstruction theory prosecuted, she was actually put on the list to be fired before the Cunningham case even existed. There is nothing there.

    To warrant any further official investigation we need actual evidence of an actual crime, not that somebody can make up a plausible story of what theoretically could be illegal if we had access to everything the President has ever done. That is called a fishing expedition.

    I can certainly assume every earmark in the budget might be because every congressman and senator has $90,000 in their refrigerator if I want. I can demand they each be investigated, along with possible bribes for every vote the legislators make. I am pretty sure we would even find a few. That doesn’t make it wise or right. Certainly you wouldn’t want the congress or the police to pursue you on this basis. If they did I am sure Doug would have a post up about your persecution quite quickly.

    Eventually the Democrats will be back in the Presidency. If they thought they hated the Clinton scandals (where at least there were crimes and civil suits being investigated) how do you think they will like this new standard? People make up a story about what could be illegal and therefore since something could be illegal the President and his staff gets hauled up in front of congress. It will be endless. This is not a precedent we want to set.

    Comment by Lance — March 23, 2007 @ 8:51 am
  17. Don’t you know? Democrats don’t need evidence of wrongdoing when Republicans are involved. To Democrats, the absence of evidence of criminal acts by Republicans is beside the point. To be Republican is to be criminal. QED.

    Comment by Vince — March 24, 2007 @ 10:30 am
  18. Yes, for all that Bush and his advisors have tried to argue that the Presidency has very imperial powers, on the truly important constitutional points they have typically caved and undermined actual Presidential power.

    Comment by Adam Selene — March 24, 2007 @ 12:40 pm

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