U.S. Attorneys: It’s the Replacing, Stupid

Posted by Barbara O'Brien at 1:14 PM on January 18, 2007.

By itself, forcing the resignations of at least seven U.S. attorneys is not necessarily scandalous. Presidents may fire U.S. attorneys, and they do so routinely at the beginning of a new administration.

It is unusual to fire U.S. attorneys in mid-term except in cases of gross misconduct, which doesn't appear to be the case for the forced resignations under discussion. I don't yet know how often that's been done. But the larger issue here is not so much the firing (although the firing is an issue) as it is the replacing. The Bush White House appears to have found another way to gut the Constitution and usurp powers that belong to another branch of government.

Since the office of United States Attorney was created by the Judiciary Act of 1789, U.S. attorneys have been subject to Senate confirmation, per the DOJ's own web site and Article II, Section 2, paragraph 2 of the Constitution:

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The White House didn't directly nullify the "advice and consent" clause. Instead, through a provision in the Patriot Act reauthorization that went into effect last year, the Attorney General can appoint "interim" replacements who can serve indefinitely without confirmation. Mark Agrast of the Center for American Progress explains:

The administration has managed to bypass the confirmation process by taking advantage of an obscure provision slipped into last year’s PATRIOT Act amendments. Until then, the U.S. Attorney General was permitted to appoint an interim U.S. Attorney for a maximum of 120 days, after which time the vacancy would be filled by the federal district court until a successor could be confirmed. The new provision removes the 120-day expiration date, allowing the Attorney General to appoint interim U.S. Attorneys on an essentially permanent basis, without Senate confirmation.

Precisely why the seven attorneys were forced out of office remains unclear. The most controversial "replacement" so far is J. Timothy Griffin, a former aide to Karl Rove, who will become the new U. S. attorney for the Eastern District of Arkansas. Griffin is replacing Bud Cummins, who was appointed by President Bush in 2001. Per Paul Kiel of TPM Muckracker,

Former Arkansas USA Bud Cummins told the Wall Street Journal that "a top Justice official asked for his resignation in June, saying the White House wanted to give another person the opportunity to serve." Cummins was finally forced out in December, replaced with Timothy Griffin, formerly the research director of the Republican National Committee.

"Wanted to give another person the opportunity to serve"? What the hell kind of reason is that?

The New York Times:

The Bush administration has appointed an extreme political partisan as the new United States attorney for Arkansas. Normally, the Senate would have vetted him, and quite possibly blocked his appointment. But the White House took advantage of a little-noticed provision of the Patriot Act, which allows it to do an end run around the Senate.

Certainly, the firings look fishy. One of the attorneys was the "Duke" Cunningham prosecutor . Another (allegedly being sacked because of his "management style") had been engaging in high-profile investigations into companies and executives fraudulently backdating stock-option grants. But in some cases no clear and obvious reason for the "firings" jumps out of news stories.

You can read Sen. Dianne Feinstein's objections to the "replacings," here.

It's the Replacing, Stupid

I want to be sure we're all clear about this issue, because the Right wants you to think the issue is mostly about the firing, not the replacing.

For example, NRO columnist Andrew McCarthy (in his artfully disingenuous way) justified the new "procedure" by explaining, "One of President Clinton’s very first official acts upon taking office in 1993 was to fire every United States attorney then serving," except for Michael Chertoff.

It was just politics, plain and simple.

Patronage is the chief spoil of electoral war. For a dozen years, Republicans had been in control of the White House, and, therefore of the appointment of all U.S. attorneys. President Clinton, as was his right, wanted his party’s own people in. So he got rid of the Republican appointees and replaced them with, predominantly, Democrat appointees (or Republicans and Independents who were acceptable to Democrats).

I dug an article about this episode out of the New York Times archives. On March 24, 1993, Attorney General Janet Reno demanded the resignation of all United States Attorneys. At the time, this prompted accusations from the Right that the Clinton Administration was trying to save the political career of Rep. Dan Rostenkowski. (If that was the plan, it didn't work.)

In any event, as I recall righties banged their pots and howled something fierce about these firings as part of their campaign to destroy Bill Clinton, even though it was a standard practice for an incoming president to replace U.S. attorneys.

Back in 1993, David Johnston of the Times wrote,

All 93 United States Attorneys knew they would be asked to step down, since all are Republican holdovers, and 16 have resigned so far. But the process generally takes much longer and had usually been carried out without the involvement of the Attorney General.

Battles of the Past

Ms. Reno is under pressure to assert her control over appointments at the Justice Department. She was Mr. Clinton's third choice for Attorney General and arrived after most of the department's senior positions were already filled by the White House.

The comments of Ms. Reno and Mr. Stephens evoked the pitched battles of the past, when independent United States Attorneys resisted removal by new administrations.

In 1969, for instance Robert Morgenthau, now the Manhattan District Attorney, resisted efforts by the Nixon Administration to replace him as United States Attorney in New York until he was given what he called an "ultimatum" by President Richard M. Nixon to leave office.

In 1978, Attorney General Griffin B. Bell removed David W. Marston as United States Attorney in Philadelphia, provoking charges, never proved, that a lawmaker under scrutiny by Mr. Marston's office had urged President Jimmy Carter to remove the prosecutor.

Four-Year Terms

United States Attorneys are appointed to serve four-year terms at the pleasure of the President. It was unclear whether Ms. Reno initiated the request for resignations or whether it was pressed on her by the White House. The Attorney General said it was a "joint decision."

Likewise, in 2001 the Bush Administration replaced Democratic prosecutors with Republican prosecutors. This was expected. And it's entirely beside the point.

About halfway through his NRO column, McCarthy admits that the Patriot Act did change the procedure for appointments. But McCarthy called the old process "a bizarre arrangement."

Previously, under the federal code (Title 28, Section 546), if the position of district U.S. attorney became vacant, it could be filled for up to 120 days by an interim appointee selected by the attorney general. What would happen at the end of that 120-day period, if a new appointee (who would likely also be the interim appointee) had not yet been appointed by the president and confirmed by the senate? The old law said the power to appoint an interim U.S. attorney would then shift to the federal district court, whose appointee would serve until the president finally got his own nominee confirmed.

And what was wrong with that?

Law enforcement is exclusively an executive branch power. The Constitution gives the judiciary no role in executive appointments, and the congressional input is limited to senate confirmation. U.S. attorneys are important members of the Justice Department — the top federal law enforcement officers in their districts. But while the attorney general runs the Justice Department, U.S. attorneys work not for the AG but for the president. They are delegated to exercise executive authority the Constitution reposes only in the president, and can thus be terminated at will by the president. Consequently, having the courts make interim appointments made no practical sense, in addition to being constitutionally dubious.

Basically, McCarthy is arguing that the Senate's "advice and consent" role is purely ceremonial -- to rubber stamp the appointments of the President. Under the previous system, if the appointment proved to be controversial and was hung up in the Senate, the President could either withdraw the nominee and appoint somebody else, or the courts would appoint an interim attorney to serve while the President and the Senate haggled. And this, to McCarthy, is unacceptable.

So yes, a president who wanted to bypass the Constitution’s appointments process could fire the U.S. attorney, have the attorney general name an interim appointee, and simply refrain from submitting a nominee to the senate for confirmation. But we’ve also seen plenty of abuse from the Senate side of appointments — and such abuse was not unknown under the old law. Though the president can nominate very able U.S. attorney candidates — just as this president has also nominated very able judicial candidates — those appointments are often stalled in the confirmation process by the senate’s refusal to act, its imperious blue-slip privileges (basically, a veto for senators from the home state of the nominee), and its filibusters.

How dare those Senators question the decisions of the Lord High Decider!

McCarthy finally falls back on the most fundamental principle of conservative ethics -- Billy did it first!

It’s worth noting, however, that the same Democrats who will be up in arms now were mum in the 1990s. President Clinton not only fired U.S. attorneys sweepingly and without cause.

Which, as I explained above, is a red herring.

He also appointed high executive-branch officials, such as Justice Department civil-rights division chief Bill Lann Lee, on an “acting” basis even though their positions called for senate confirmation. This sharp maneuver enabled those officials to serve even though it had become clear that they would never be confirmed.

Reporting on Lee on February 26, 1998, the New York Times noted: “Under a Federal law known as the Vacancy Act, a person may serve in an acting capacity for 120 days. But the [Clinton] Administration has argued that another Federal law supersedes the Vacancy Act and gives the Attorney General the power to make temporary law enforcement assignments of any duration.”

To be clear, Lee's appointment was as Assistant Attorney General for Civil Rights, not as U.S. attorney, and I assume a different part of the federal code applied. The situations are similar in principle, of course. Here is the New York Times article McCarthy cites, and here is a New York Times editorial about the Republicans' war against Bill Lann Lee.

This story is long and complicated, but in a nutshell, Orrin Hatch, as chairman of the Senate Judiciary Committee, sat on Lee's nomination. Literally. He scheduled no committee hearings; he just ignored the nomination. The Republicans found Lee's nomination unacceptable because he had a long record of supporting civil rights and equal opportunity and other scary socialist stuff. Clinton kept him in the job through recess appointments, in the same way John Bolton became a UN ambassador.

McCarthy screams about hypocrisy; where was he when Orrin Hatch sat on Bill Lann Lee's nomination? Was he wringing his hands because the presidents' nominee wasn't allowed an up-or-down vote in the Senate? Somehow, I doubt it.

For the record, I don't like recess appointments, either, except in case of genuine emergency. But aren't you just damn tired of Republicans who want the Dems to abide by a stricter set of rules than they accept for themselves? And isn't there some way we can amend the Constitution so that Washington politicians act like grown ups?

Tagged as: bush administration, gonzales, u.s. attorneys

Barbara O'Brien has guest blogged at the Take Back America Conference, Glenn Greenwald's, Unclaimed Territory, and Crooks and Liars. She is the "owner/proprietor" of The Mahablog.