Attorney Firings: What the White House Wanted to do, But Didn't
*Cross-posted from The Huffington Post
In the coming days, commentators will be scrambling for their
thesauruses to find new ways to describe the mounting criticism of
Attorney General Gonzales (try "calumny" or "obloquy" for starters).
But it's worth lingering on one perhaps the most illuminating aspect of
today's news: What the White House wanted to, but didn't, do.
According to internal White House emails,
White House Counsel Harriet Miers suggested in early 2005 that all 93
U.S. Attorneys be removed and replaced. We need to know a lot more
about the scope and detail of this plan, and critically, its relation
to the provision in the March 2006 Patriot Act that allowed the White
House to circumvent both legislative and local controls on
prosecutorial appointments.
Let me explain why. Back in early 2005 [pdf], as President Bush began his second term of office, most U.S. Attorneys were already his appointees. As one email chain disclosed yesterday reveals [pdf],
the White House knew that precisely 77 were Bush II appointees). To be
sure, these appointees had been subject to nomination and confirmation
by the Senate, as required by Article II of the Constitution. But it
had been President Bush who had selected them (just as he selected
Carol Lam, David C. Iglesias, Paul K. Charlton, Daniel K. Bogden, and
the other recently terminated prosecutors). So why even risk the
political contention and fallout of a nationwide purge?
The emails disclosed yesterday are somewhat revealing on this point.
They include correspondence from Gonzales chief of staff Kyle Sampson
in which he "strongly recommend[s]" the use of the Patriot Act
provisions, (page 7 of this document [pdf])
because it would allow the White House to bypass "home-State
Senators"--including, it's worth noting, Republicans--and vest more
control in the Executive.
But why? This is what the emails say: In the Reagan and Clinton
years, U.S. Attorneys were appointed, as per statute, for four years.
But after their four years were up, they stayed on as "holdover"
appointments until the end of the second presidential term. White House
Counsel Harriet Miers wanted to change this: Page 20 of this document [pdf]
says as much. That was the point at which discussion began of a more
limited purge, in which certain prosecutors would be identified not,
seemingly, on the basis of performance strictly understood, but on the
basis of performance understood in narrowly partisan terms.
Quite properly, the "strictly partisan" bit is what has been the
focus of attention. But that's not all that's of concern here.
As the emails reveal, many of the dismissed U.S. Attorneys could
have been dismissed in 2005 as "holdovers." Indeed, changes in the
Senate's composition between 2001 and 2005 might well have allowed a
different, more political, set of prosecutors to be pushed through. Why
then did nothing happen until December 2006?
Nothing happened after an obscure provision was added to the Patriot
Act renewal bill in March 2006, a provision that terminated any
congressional role in the replacement of U.S. Attorneys, that the White
House made its move - the Patriot Act provision. But what connection
does that legislative change have to the discussions between Miers,
Sampson and others?
It was then-Chairman of the Senate Judicary Committee, Senator Arlen
Specter who technically added the provision expanding executive power.
According to Senator Specter, however,
the change was requested by a Justice Department official named Brent
Tollman. The push for legislative change, that is, came from within the
executive branch. And Spector's chief counsel, Michael O'Neill,
inserted the provision that Tollman sought into the legislation without the Senator's knowledge.
(Tollman, incidentally, is presently the US Attorney for Utah. At 36,
he is, I am told, one of the youngest U.S. Attorneys ever. And Joe
Conason has asked pointed questions about O'Neill's background).
Hard questions certainly need to be asked about how partisan
politics entered into firing and replacement of prosecutors. But in
addition, we need to ask to what extent was that process interwoven
with the effort to secure increased presidential power over
prosecutorial replacements? This is, as I have explained elsewhere, an executive cares deeply about executive prerogatives far beyond those that law or history would support.
That Tollman is a sitting U.S. Attorney ought not to make him immune
from congressional inquiry about his past responsibilities. Both
Harriet Miers and Alberto Gonzales too ought properly to know how and
why Tollman came to put in his request. And certainly more must be
known about why O'Neill inserted this provision without his Senator's
knowledge.
In all this we would do well not to lose sight of Miers' original
plan: the firing of all 93 U.S. Attorneys. Note that this remains
possible under the law today, with the President still having
unfettered control over replacements. And even if the law were changed,
a President with an aquiescent Senate could still fire and replace
prosecutors for large political gain. And a blanket purge by this or a
future President would, ironically, be immune from the charges of
political bias that last December's firings provoked.
So the larger and harder question posed today is whether new forms
of insulation from political control are needed for prosecutors (and
other government lawyers, as I have explained here).
This is no easy task, but at a very minimum, it demands rejection of
the simplistic, and ill-conceived, notions of a "unitary executive"
that this Administration has long proffered.
Aziz Huq: "Attorney Firings: What the Whitehouse Wanted to do But Didn't" (pdf)
