On the firing of attorneys

Dateline 13 April 2007

2007 is not, of course, the first time that a President of one party has faced a Congress controlled by the other. It was actually the post-war norm. Jimmy Carter is the only President since Lyndon Johnson to serve his entire term with Congress controlled by his own party.

But there is no doubt that partisanship – high during the Reagan years and higher still under Clinton – is now at its most bitter in more than a century. We have to look to Andrew Johnson’s term of office to find a parallel to the latest bizarre little scandalette. I honestly did not think that the nonsense of the Plame kerfuffle could be matched. I was wrong about that.

The division of power in the 1860s came about not because Congress changed hands, as it did last year. It was the Presidency that changed hands. Lincoln had been re-elected on a National Union ticket with Johnson – the only southern Senator who stayed loyal to the Union – as his running mate. Assassination, therefore, was the means by which the Presidency passed from a Republican (Lincoln) to a Democrat (Johnson).

The Republican Congress then adopted the Tenure of Office Act, which was designed to stop Johnson firing any of Lincoln’s appointees. Johnson fired War Secretary Edwin Stanton – ironically, a Democrat – in defiance of the Act, and the House impeached him. In the Senate the vote fell one short of the required two thirds majority to remove their former (and future) colleague from office.

So, can a Democrat Congress exact revenge by impeaching George W Bush over the dismissal from office of eight US Attorneys? It seems doubtful on three principal grounds. The Tenure of Office Act was repealed in 1887; it did not, in any case, cover US Attorneys, only positions appointed with the advice and consent of the Senate; and a similar measure was declared unconstitutional by the Supreme Court in 1926. Each of these objections would, on its own, seem to wholly answer the case against the President. In combination they expose all the talk of subpoenas and special prosecutors as risible.

US Attorneys serve at the pleasure of the President. If they fail to pursue the policies of the Justice Department, and turn a blind eye to investigations the administration regards as a priority – voter fraud being one obvious example – they are liable to dismissal.

Congress may, for its own partisan reasons, agree that voter fraud in Washington State – even though fraud plainly undermined the legitimacy of the gubernatorial election – is not a priority. But Congress does not have the right to simply override the US Constitution and declare that the President is no longer the head of the executive branch.

The President has absolute discretion in firing US Attorneys. If he had fired them for partisan reasons – and there is no evidence of this – he would be open to partisan criticism, but it would not have been illegal.

Bill Clinton fired all the US Attorneys appointed by his predecessor, for partisan reasons. This was his right. Elections have consequences. George W Bush gave these eight a fair chance to prove that they could serve his administration and found them wanting. That was his right too.


Quentin Langley is editor of http://www.quentinlangley.net an academic at the University of Cardiff and is a columnist with Campaigns & Elections. This article was first published in the Common Sense series for Lake Champlain Weekly.

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