Saturday, March 17, 2007

The Press, Congress, Laws, and the Constitution (Part I): “Purgegate” The US Attorney Debacle

I have to apologize for my recent absence from posting. If you could see my desk at work you’d all understand. That said, there are a couple of issues I’ve been wanting to post about but haven’t found the time.

Before I delve into the details of my issues, first let me explain the theme and the title of the post. Paul over at the Cranky Conservative had an excellent post about the recent Washington Post editorial that, in a nutshell, suggests that the constitutionality of a law is not something that the Congress should be concerned with. Rather, according to the Post, that is something for the Courts to sort out; Congress should simply pass whatever it wants and let the rest be sorted out later. Wonderful. I concur with Paul; we now have a major American newspaper that is fundamentally misrepresenting to millions around the world how our government works. Terrific. The Post is perpetrating a myth, albeit a widely held myth, but that does not change anything. However, the errors about legal issues in reporting go far further than one editorial. In fact, they have recently been permeating reporting about all sorts of issues, be it the potential pardon of Scooter Libby, or the US Attorney debacle, which I will discuss below. Basically, we have developed a wide spread public belief that the Courts are the be all and end all when it comes to matters of law and the Constitution. Just like the public, by and large, harbors a mistaken belief that the President is the most powerful Constitutional actor. Both are horribly wrong, and lead to all sorts of errors both in the way we evaluate current events and shape the debate about what should be done. It is my opinion that while the “should the government do X” question is by far the most interesting and complex question our political discourse faces, it is impossible to answer if the general public doesn’t understand basic principles like how the government works, or what the various officials within the government (both elected and appointed) are empowered to do.

Let me start with the US Attorney’s issue. First, lets clear up a couple of things. One, the President can fire a US Attorney anytime for any reason. Period. Of this there should be no debate. The power to appoint inferior officers of the United States, which ALL US Attorneys are, is specifically vested by Article II to the President. The appointments are subject to advice and consent of the Senate, but the appointment power is exclusive to the President. It is also well settled, that the corollary power -- the power to remove an inferior officer of the United States -- is also exclusively the President’s. Now, there have been some debate as to whether Congress can, by establishing terms of office, and other so-called “for cause” removal protections by statute -- the statutes creating the FBI Director, Fed Chairman, and Administrator of Social Security are good examples -- limit the President’s ability to remove, but that doesn’t apply to US Attorneys who have no such statutory protection. All this is by way of saying that by asking the 7 US Attorneys to resign, the President/Attorney General did not do anything legally or constitutionally improper. The President could have fired any of them at any time for any reason, ranging from they got a bad haircut, to egad, even political reasons. So why then, you ask, has this been such a big deal?

Well, in part because the press has screwed it up, in part, because the AG’s office has screwed it up, and in part because Congress smells blood in the water. This thing isn’t about removal of 7 US Attorneys, although that makes an interesting story; it’s about how their replacements are appointed. This is the crux of the issue that has been sorely missed by almost everyone. To begin with, one has to understand the laws. There is a statute that governs the appointment of interim US Attorneys, it is found at 28 USC 546. Basically, what that statute said, up until last year, was that the AG could appoint an interim US Attorney for up to120 days or until the President’s appointment is confirmed by the Senate. If the position remains vacant past the 120 days, the statue required the District Court to appoint a temporary US Attorney until the Senate confirmed one. Not so hard to understand right? Well, Presidents have never really liked this statute, but they’ve lived with it (sort of) since its adoption in 1966. This Administration, however, convinced the Congress during re-authorization of the USA PATRIOT Act to change 546. The major change they got was the elimination of the court appointment. Now, under 546 the AG can appoint a temporary US Attorney indefinitely or until the Senate confirms a replacement. Fine, whatever, except, I’m willing to be that this is probably the first many of you are hearing about it. Why, because this stuff, the important, critical details, don’t get reported or talked about. Not as sexy as a bunch of lawyers who serve at the pleasure of the President getting fired for “political reasons.”

But wait, there’s more, and better too. You see section 546 is not the only way to appoint a temporary US Attorney, at least not according to this Administration. Long before this little hubbub, in 2003, they published a little read opinion that suggested that they could use the “Vacancies Reform Act of 1995” to fill vacant US Attorney positions, despite the express provision in Title 28. Now, this statute allows for the temporary appointment of officers of the United States for up to 210 days. Still better, the Administration suggested they could use the two statutes in tandem. In other words, they were using 546 to fill vacancies for say 100 days, then, realizing the Senate wasn’t going act before the expiration of the 120 days, they would use the Vacancies Act to leave that person in place for another 210 days, for a grand total of up to 330 days, or almost a year, all without Senate confirmation. Creative, right; sure, maybe, but a total end-run around the Senate and a total butchering of the statutes. This specific bit of mis-administration occurred after a fiasco involving the US Attorney for the District of South Dakota, a story that I’ve only seen recounted in one place, the National Law Journal. Basically what happened, according to the folks at the National Law Journal, was that when the South Dakota position became vacant, the AG appointed the temporary US Attorney under 546, but the Senate, as it is want to do, didn’t act before the 120 day time limit expired. So the AG went to the District Court, per 546, and asked that Mr. X be appointed temporarily, pending, of course, a confirmed US Attorney. (This, in fairness, was a common procedure. The AG would recommend a temporary appointment and usually would get the person they requested, but that isn't what the statute actually requires.) The Court didn’t like Mr. X and, instead, as it had the power to do under the statute, appointed Mr. Y, the former AG for South Dakota as the temporary US Attorney. Needless to say this didn’t make the AG happy, so they fired Mr. Y (because they could, the court had the power to appoint, but not to protect or remove), and went to, get this, the District Court for the District of NEBRASKA, to get Mr. X appointed as the temporary US Attorney for SOUTH DAKOTA. After that, the creative interpretation discussed above was born. Classic. Not reported anywhere, however, nor discussed at any of the hearings or press conferences that we’ve all seen and read about over the last few days. Why? I wish I knew, because I think regardless of what your political affiliation is this kind of stuff ought to bother one as a citizen.

Okay, you’re outraged, but still partisan, so you reply, like the White House and other pundits, that President Clinton fired all 93 US Attorneys in 1993 when he took office and no one in Congress blinked, how is this different? If I have to explain this then it’s hopeless, which I suppose why that red herring makes for good press fodder and rhetoric. Again Presidents can fire US Attorneys for ANY reason. Clinton cleaned house, not surprising after 12 years of GOP US Attorneys. But 1993 isn’t the relevant period to look at. Rather, 1997, after Clinton’s reelection in 1996, is the comparative period. Bush did the same thing in 2001 when he took office, as he should have after 8 years of Dem US Attorneys. But what Bush’s folks did that Clinton’s didn’t was that he allowed these people to be held over beyond his first 4 years in office. Then he asked them to resign, two years into his second term. Had he done this very same thing right after his reelection, as apparently was suggested, as Nixon did with his cabinet in 1972, there probably wouldn’t have been a big deal made at all. Terminating these positions mid-way through an Administration is different than a wholesale house cleaning at the start of a new Administration, especially after a change in parties. US Attorney positions are essentially patronage positions. High profile, important patronage positions, but all the same, they go to the Administration’s friends, not their enemies. All this obscures the issue, its not the firings that are the problem, though they look bad, it’s the reappointments that should bother the Congress, especially the Senate, who got snookered but good into relinquishing its advice and consent power over US Attorneys.

I’ll do part II, the Voting Rights Act for DC, later, maybe tomorrow.


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