Originally Published: 3/28/2007
FIRING FEDERAL ATTORNEYS
By The Issue Wonk
Does the President have the right to fire the people he appoints? It’s a good question and goes to the heart of the investigation into the firing of eight (8) U.S. attorneys. It appears that the president does have the right to fire an appointee, under certain circumstances.
In December 2006 eight (8) federal attorneys were fired or pushed out of their positions. Several of these had worked or were working on high profile cases. Attorney General Alberto Gonzales stated that they were fired for poor job performance, but “at least 5 of them received positive job evaluations before they were ordered to step down.”1 The Washington Post had a thumb-nail sketch of the fired attorneys.2
There also appears to be some intimidation of the fired attorneys to discourage them from challenging their firings. Michael Elston, chief of staff to Deputy Attorney General Paul McNulty, contacted one of the fired U.S. attorneys and said that if any of the prosecutors who were dismissed continued to criticize the administration for its decision, previously undisclosed details of why they were fired would be released. The message was passed on to other fired U.S. attorneys and at least one of them interpreted the comments as a threat. The Justice Department denies the call ever took place.3
Why were they fired? It appears that it was for political reasons. They were (a) pursuing cases against prominent Republicans and (b) not pursuing cases against Democrats for voter fraud. Gordon, Talev, and Taylor4 investigated the reasons for the firings. They stated that this has been an attempt by President Bush and his advisers to suppress Democratic votes. They said, “Bush has appointed at least three U.S. attorneys who had worked in the Justice Department’s civil rights division when it was rolling back longstanding voting-rights policies aimed at protecting predominantly poor, minority voters. . . U.S. attorney, Tim Griffin in Little Rock, Ark., was accused of participating in efforts to suppress Democratic votes in Florida during the 2004 presidential election while he was a research director for the Republican National Committee. . . Taken together, critics say, the replacement of the U.S. attorneys, the voter-fraud campaign and the changes in Justice Department voting rights policies suggest that the Bush administration may have been using its law enforcement powers for partisan political purposes."4
There are 93 U.S. federal prosecutors who are nominated by the president and confirmed by the Senate. It is typical when a new president is sworn in for the new administration to receive resignations from all high level officials, including U.S. attorneys. In most cases, these are all accepted and the new president makes new nominations. Kevin Scott of the Congressional Research Service (CRS) examined the tenure of all U.S. attorneys who were confirmed by the Senate between the years 1981 and 2006 to determine how many had served and, of those who had been forced to resign, the reasons other than a change in administration.5 He found:
At least 54 U.S. attorneys appointed by the President and confirmed by the Senate left office before completion of a four-year term between 1981 and 2006 (not counting those whose tenure was interrupted by a change in presidential administration). Of those 54, 17 left to become Article III federal judges, one left to become a federal magistrate judge, six left to serve in other positions in the executive branch, four sought elective office, two left to serve in state government, one died, and 15 left to enter or return to private practice.
Of the remaining eight U.S. attorneys who left before completing a four-year term without a change in presidential administration, two were apparently dismissed by the President, and three apparently resigned after news reports indicated they had engaged in questionable personal actions. No information was available on the three remaining U.S. attorneys who resigned.
Therefore, the firing of eight (8) prosecutors in mid-term is highly unusual. So, the question remains, why were they fired? Defenders of the decision argue that since they are political positions they serve at the pleasure of the president and can be removed at any time for any reason. Not quite true. As any of you who have ever managed employees in any setting, you know that you may be able to fire a person for any reason, but it must be a good reason. For instance, you cannot fire an employee who has good performance evaluations because you don’t like his/her new haircut or the fact that he/she has put on or lost weight. You get my drift.
What does the Constitution say about the removal of people who have been appointed by the President with the “advice and consent” of the Senate? Nothing. However, there has been discussion about it.
In 1789 James Madison gave a speech on presidential removal power. He appears to believe that the power of removal of nominated and confirmed positions lies with the president. He said:
I conceive that the president is sufficiently accountable to the community; and if this power is vested in him, it will be vested where its nature requires it should be vested; if anything in its nature is executive it must be that power which is employed in superintending and seeing that the laws are faithfully executed; and laws cannot be executed but by officers appointed for that purpose; therefore those who are over such officers naturally possess the executive power. If any other doctrine be admitted, what is the consequence? You may set the senate at the head of the executive department, or you may require that the officers hold their places during the pleasure of this branch of the legislature, if you cannot go so far as to say we shall appoint them; and by this means you link together two branches of the government which the preservation of liberty requires to be constantly separated.6
Thus, Madison argued that the senate should have no voice in the removal of an appointed officer as this would violate the separation of powers. Does this mean that there is no consequence for a president who removes a “meritorious” officer? Not at all. Madison argues that the Constitution provides protections against such an act: impeachment and the power of the Senate to confirm that officer’s replacement. He stated:
It is to be remarked that the power in this case will not consist so much in continuing a bad man in office, as in the danger of displacing a good one. . . The danger then consists merely in this: the president can displace from office a man whose merits require that he should be continued in it. What will be the motives which the president can feel for such abuse of his power, and the restraints that operate to prevent it? In the first place, he will be impeachable by this house, before the senate, for such an act of mal-administration; for I contend that the wanton removal of meritorious officers would subject him to impeachment and removal from his own high trust. But what can be his motives for displacing a worthy man? It must be that he may fill the place with an unworthy creature of his own. Can he accomplish this end? No; he can place no man in the vacancy whom the senate shall not approve; and if he could fill the vacancy with the man he might chuse, I am sure he would have little inducement to make an improper removal. . .6 [Emphasis added.]
Therefore, Madison believed that the threat of impeachment would preclude a president from firing a “meritorious” official and, if that doesn’t occur, the Senate confirmation process would keep the president from replacing such a “meritorious” official with “an unworthy creature of his own.”
The U.S.A. Patriot Act
Section 502 of the USA Patriot Improvement and Reauthorization Act of 2005, which was signed in March 2006, changed the law regarding the appointment of U.S. attorneys, transferring the power to appoint interim attorneys from the federal district courts to the attorney general. Originally the relevant federal district court would have appointed a replacement within 120 days. Now the Attorney General can make appointments for an indefinite period of time, without Senate confirmation. (NOTE: As of this writing, both the Senate and the House of Representatives have passed a bill to eliminate this provision. It may be vetoed by the President, but it appears there are enough votes to override a veto.)
How did this happen? There’s much speculation but the Justice Department said that the revisions were “designed by a mid-level department lawyer (William Moschella) without the knowledge of his superiors or anyone at the White House.”7 This is so ridiculous that no one could possibly believe it. But even if you did believe it, it was contradicted by Karl Rove, the President’s close advisor, in a Q & A after a speech he gave at the Statehouse Convention Center in Little Rock, Arkansas. He said:
The old mechanism said that if the Congress didn’t act, that in essence a judge would appoint the United States Attorney – we believe that presents some Constitutional challenges and really is not the way that the executive branch ought to be run. But yes, our intention is, for all of the seven of these vacancies, to submit a nomination to the United States Congress for their review and confirmation.8
In spite of this, Tim Griffin was appointed as the interim U.S. Attorney in Arkansas, and now says he won’t seek Senate confirmation.9 As to the other replacements, I was not able to determine whether they had been confirmed or not. The office of Senator Patrick J. Leahy, chair of the Senate Judiciary Committee, advised me that they didn’t have anything to do with confirming attorneys and the Attorney General’s Website is incomplete and confusing.
Why did the Bush administration pursue this change? Did they realize that the Senate confirmation process for replacing fired attorneys would be an impediment to appointing whoever they wanted? It appears so. It’s clear that discussions regarding replacement of federal attorneys began around the time the Patriot Reauthorization Act was being drafted. The issue was raised by Karl Rove in early January 2005. (See e-mails.) And, e-mails indicate that William Moschella, the “mid-level department lawyer” who supposedly was behind the revision:
. . . discussed the need for proposed changes with other Justice Department officials on November 11, 2005, around the time when the [Patriot Reauthorization] bill was being drawn up. “We support eliminating the court’s role” in appointing interim U.S. attorneys, Moschella wrote to officials, including Michael Battle, the director of the Executive Office for U.S. Attorneys, “and believe the AG should have that authority alone.”10
One of the e-mails that has come to light is a discussion between Kyle Sampson, Gonzales’ then-Chief of Staff, and Gonzales' Senior Counsel Monica Goodling about potential U.S. Attorney nominee Timothy Griffin (see above) and possible problems with Senate confirmation.
Can a President fire a presidential appointee? Yes. For a reason. A good reason. But a “meritorious official” cannot be fired so that a President can replace the official with “an unworthy creature of his own.” For the last 25 years this has been the case. This administration, however, subscribing to the Unitary Executive Theory, apparently planned the replacement of “meritorious officials” with “creatures of their own” for quite some time. But, knowing that their own “creatures” would have difficulty getting Senate confirmation – the “check” in our Constitution as described by Madison – they sought and got a legal change to circumvent the confirmation process. Since one of Madison’s Constitutional “checks” failed, perhaps we should pursue the second Constitutional “check:” impeachment.
1 Taylor, Marisa. 5 Ousted U.S. Attorneys Received Positive Job Evaluations. McClatchy Newspapers, February 12, 2007.
2 Fired U.S. Attorneys. Washington Post, March 6, 2007.
3 Taylor, Marisa. U.S. Attorney Worried “Gloves Would Come Off” Over Criticism of Ouster. McClatchy Newspapers, March 5, 2007.
4 Gordon, Greg, Talev, Margaret, & Taylor, Marisa. New U.S. Attorneys Seem to Have Partisan Records. McClatchy Newspapers, March 23, 2007.
5 Scott, Kevin M. February 22, 2007. U.S. Attorneys Who Have Served Less than Full Four-Year Terms, 1981-2006. Congressional Research Service.
6 Madison, James. Speech in Congress on Presidential Removal Power, June 16, 1789.
7 Talev, Margaret & Taylor, Marisa. Justice Dept. Distances White House From Firings of U.S. Attorneys. McClatchy Newspapers, March 14, 2007.
8 Arkansas Blog. Rove Speaks in Little Rock. Arkansas Times, March 8, 2007.
9 Dems to Subpoena Fired Federal Prosecutors. Associated Press, March 2, 2007. Archived at MSNBC.msn.com.
10 Hutcheson, Ron, Taylor, Marisa, & Talev, Margaret. Documents Highlight Gonzales’ Role in the Firings. McClatchy Newspapers, March 23, 2007.
© The Issue Wonk, 2007