A Stitch in Haste

Politics most foul:

Carol Lam, the former United States attorney for San Diego, is smart and tireless and was very good at her job. Her investigation of Representative Randy Cunningham resulted in a guilty plea for taking more than $2 million in bribes from defense contractors and a sentence of more than eight years. Two weeks ago, she indicted Kyle Dustin Foggo, the former No. 3 official in the C.I.A. The defense-contracting scandal she pursued so vigorously could yet drag in other politicians.

In many Justice Departments, her record would have won her awards, and perhaps a promotion to a top post in Washington. In the Bush Justice Department, it got her fired.

Ms. Lam is one of at least seven United States attorneys fired recently under questionable circumstances.
...
The Congressional Research Service has confirmed how unprecedented these firings are. It found that of 486 U.S. attorneys confirmed since 1981, perhaps no more than three were forced out in similar ways -- three in 25 years, compared with seven in recent months.

The President gets to appoint federal judges, but federal judges are not political appointments. The Attorney General may be a political appointment -- the last three certainly have been. But not everyone who serves under a political appointee is himself a political appointee. For example, ambassadors are political appointees, but career diplomats generally are not. The Director of National Intelligence is a political appointee, but CIA operatives aren't. The Pentagon is teeming with both political and non-political civilian appointees. And so on.

"United States Attorney" is not a constitutional office. It exists because Congress brought it into existence. Can Congress not, therefore, change it from a political to a fixed-term appointment?

So here's my modest proposal: Change the term of office for United States Attorney from "serves at the pleasure of the President" to "seven years."

Discuss.

More thoughts at Distributed Intelligence.

---

Some people are, meanwhile, quite passionate about wanting to scrap lifetime appointment for Article III judges. I'm both uninterested and disinterested in the topic, but I wouldn't grab my torch and pitchfork over a proposed constitutional amendment changing Supreme Court appointments from "for life" to "for fourteen years" or "for twenty years" or some other sufficiently long period. Discuss.

To review — The Bush Administration position on the firing of eight United States Attorneys for purely political reasons has been curt and abrupt: The attorneys serve at the pleasure of the president. His hire-and-authority power over political appointees is essentially plenary. Moreover, no evidence of any crime or other wrongdoing has ever been alleged. So suck it.

Up until now, the response to this unforgivably simplistic talking point has been twofold:

1. There is no such thing as a "plenary presidential power" to behave irresponsibly. See, e.g., Marc Rich.

2. If the president's hire-and-fire power is "plenary," then so too is Congress' investigatory power. Evidence of a crime or other wrongdoing is not a prerequisite. Congress can essentially investigate anything it wants. So suck it.

Well, now even the "no evidence of any crime or other wrongdoing has ever been alleged" talking point has been blunted:

The White House said Thursday that missing e-mail messages sent on Republican Party accounts may include some relating to the firing of eight United States attorneys.
...
[Representative Henry A.] Waxman also said he now had "serious concerns about the White House's compliance with the Presidential Records Act," a 1978 law that requires administrations to keep records of deliberations, decisions and policies. The congressman asked for an inventory of all communications by White House officials on nongovernment e-mail accounts.

President Bush has directed the White House counsel's office to try to recover any missing e-mail messages, but Scott Stanzel, the deputy White House press secretary, said it was unclear how much may have been lost. As to whether the missing e-mail related to the prosecutors' dismissals, Mr. Stanzel said, "It can't be ruled out."

The Presidential Records Act, 44 U.S.C. 2201-2207, is a post-Watergate law declaring, inter alia, that:

--Presidential records belong to the American people.

--The President is responsible for the custody and management of his administration's records.

--Records may be deleted or destroyed only with the permission of the Archivist of the United States.

And, of course, emails are records — let's hope the White House doesn't try to muddy those waters.

Clearly, President Bush and Karl Rove are now ensnared in their own logic trap. They cannot simultaneously argue that the emails and other records of Karl Rove — whether concerning the USAs or anything else — are protected by executive privilege but not subject to the Presidential Records Act. It has to be both or neither.

Meanwhile, the very fact that Karl Rove was using private email accounts (i.e., provided by the Republican National Committee) and had unfettered authority to delete his own emails both seem to rather blatantly violate the Presidential Records Act. Though the analysis on that front is just beginning.

One way or the other, this may very well initiate the deletion of Karl Rove. Stay tuned.

The initial report on the emails comes from Citizens for Responsibility and Ethics in Washington. More thoughts from Hit & Run, Threat Level.

POST SCRIPT: In case any of my younger readers don't recognize "18:30."

"To enforce the law and defend the interests of the United States according to the law; to ensure public safety against threats foreign and domestic; to provide federal leadership in preventing and controlling crime; to seek just punishment for those guilty of unlawful behavior; and to ensure fair and impartial administration of justice for all Americans."
--Department of Justice Mission Statement

"The refusal to answer pertinent questions in a matter of inquiry within the jurisdiction of the senate, of course, constitutes a contempt of that body, and by the statute this is also made an offense against the United States."
--In re Chapman, 166 U.S. 661 (1897)

The White House recently indicated that it will forbid any office or employee within the Justice Department to act upon a contempt citation by Congress once the administration has invoked executive privilege:

Under federal law, a statutory contempt citation by the House or Senate must be submitted to the U.S. attorney for the District of Columbia, "whose duty it shall be to bring the matter before the grand jury for its action."

But administration officials argued yesterday that Congress has no power to force a U.S. attorney to pursue contempt charges in cases, such as the prosecutor firings, in which the president has declared that testimony or documents are protected from release by executive privilege.

This is, of course, utter nonsense.

On the other hand, it is also utter nonsense to proclaim that this showdown between Congress and Bush is in any way "constitutional," or worse, a "constitutional crisis."

To review: The terms "U.S. Attorney" and "Department of Justice" appear nowhere in Constitution. They are both creatures of statute. Indeed, the term "executive privilege" doesn't even has that pedigree — it's basically just a presumption (other privileges, such as attorney-client and spousal privilege, are themselves statutory and not constitutional in nature).

Consider this bizarre gobbledygook from a member of the "unitary executive" cult:

David B. Rifkin, who worked in the Justice Department and White House counsel's office under presidents Ronald Reagan and George H.W. Bush, praised the position and said it is consistent with the idea of a "unitary executive." In practical terms, he said, "U.S. attorneys are emanations of a president's will."

Flunk-the-final wrong. U.S. attorneys are creations of statute — and therefore "emanations" of Congress's will just as much as — perhaps more than — the president's.

The Justice Department is, likewise, whatever statutory law says it is, and must perform whatever functions statutory law instructs it to perform. All else is sophistry.

If a duly enacted statute includes compulsory initiation of contempt prosecutions at the behest of Congress, then so be it.

And if the statute does not include such compulsory duties, then Congress can simply amend the statute. And the president can veto the amendment, and Congress can override the veto or attach it to the Justice Department's omnibus appropriation. And so on. Such is the legislative process.

But the situation is "constitutional" only in the Presentment Clause sense: What statutes have been enacted in the past, and which ones might be enacted in the future? There is simply no "crisis."

So too with executive privilege: If Congress doesn't agree with the president's interpretation of the concept, then Congress can simply revise it via statute — no different than, say, revising the Federal Rules of Evidence. Or Congress could at least try to revise it given the veto power. But again, no "constitutional crisis" exists.

As for what current statutory law demands, the plain language — "whose duty it shall be to bring the matter before the grand jury for its action" — seems clear enough, although there may well be statutory counterarguments (e.g., context-dropping or contradictory provisions elsewhere in statutory law). If the White House can make such arguments, then more power to it (pun intended). But to merely chant the mantra of "executive privilege" over and over like a drug-fogged shaman simply will not suffice.

More thoughts from Professor Frank Askin.

---

Finally, would now be a good time to revisit my proposal that United States Attorneys be given fixed seven-year terms rather than be considered political appointments?