An Historical Perspective on the Controversy over U.S. Attorney Firings:
In Making Its Inquiry, Congress Must Not Ignore That the Power to Remove is an Incident of the Power to Appoint - And Both are Necessary for the Proper Enforcement of Law

By DOUGLAS KMIEC

Monday, Mar. 19, 2007
Recently, there has been much talk of a "scandal" in the Department of Justice - based on claims that Attorney General Alberto Gonzales improperly allowed politics to govern the removal of a number of U.S. Attorneys. The facts still remain to be ascertained, by Congressional inquiry. Hopefully, the facts will show that the law was administered without partisanship or favoritism.

As Congress inquires into this matter, it must be careful not to subvert the intended constitutional structure, and historical traditions in this area, by allowing its own political calculus or motivations to play a role.

From a historical perspective, the supervisory relationship between the President, his Attorney General and the nation'sbranch law offices, the U.S. Attorney's Offices, is quite well-established. Thus, Congress should examine the relevant history, before making potentially baseless accusations concerning Attorney General Gonzáles's efforts to oversee his department.

The History of The Relationship Between the Attorney General and Local U.S. Attorney's Offices

At the founding of the Republic, the contours of the relationship between the Attorney General and U.S. Attorneys were perplexing, and unsatisfactorily-defined. In those times, supervision of U.S. Attorneys was rather oddly given to the State Department, which had little interest in such matters; after all, U.S. Attorneys' jurisdiction is overwhelmingly domestic, not international. As a result, U.S. Attorneys pretty much did as much (or as little) as they wanted.

Appointed in 1790, Edmund Randolph, America's first Attorney General, wisely asked for "directive" authority over the independently-minded officers who ran local U.S. Attorneys' offices. However, Congress adjourned without addressing his request - and as a consequence, Attorneys General regrettably were compelled to operate in a rather haphazard way for close to 80 years. (Randolph even received only a half salary and was expected to supplement his income with the private practice of law. Ruefully, Randolph would describe himself as something of "a mongrel" settling for the scraps from the Cabinet's table.)

By 1870, however, Congress had recognized both the need to create a formal Department of Justice, and the importance of placing the Department's components under well-articulated lines of authority. The value of executive supervision of local offices had finally been grasped.

Historically-uninformed voices seeking short-term political advantage jeopardize this value with hasty calls for Gonzales's removal or resignation. Any claims that the Attorney General ought to take a hands-off approach regarding local U.S. Attorney's Offices are historically inaccurate. Worse, they ask us to repeat a mistake that Congress reversed as far back as 1870.

Historically, the Executive Has Received the Benefit of the Doubt on Removals of Executive Branch Officials

Not only does the Attorney General historically have authority with respect to local U.S. Attorney's Offices, but he (or she) has also enjoyed the benefit of the doubt on removals of executive officers such as U.S. Attorneys, including those subject to Senate confirmation.

Why? Quite simply because it is the executive who is in the best position to evaluate U.S. Attorneys' performance, and who is responsible for it. In 1923, Chief Justice Taft, the only member of the Supreme Court to have also served as president of the United States, affirmed that removal authority vis-à-vis executive officers, even those subject to Senate confirmation, was an incident of the president's power to nominate, not the Senate's power to confirm. Taft put it this way in the landmark case of Myers v. United States: "The power to prevent the removal of an officer who has served under the President is different from the authority to consent to or reject his appointment. When a nomination is made, it may be presumed that the Senate is, or may become, as well advised as to the fitness of the nominee as the President, but in the nature of things the defects in ability or intelligence or loyalty in the administration of the laws of one who has served as an officer under the President are facts as to which the President, or his trusted subordinates, must be better informed than the Senate, and the power to remove him may therefor be regarded as confined for very sound and practical reasons, to the governmental authority which has administrative control. The power of removal is incident to the power of appointment, not to the power of advising and consenting to appointment, . . ." (Emphasis added.)

Today, the powers of the office of the Attorney General fully reflect Taft's insight. It is described as the "chief law enforcement officer of the United States, . . .guid[ing] the world's largest law office in the central agency for enforcement of federal laws." The United States Attorneys serve as the nation's principal litigators, but as the DOJ website clearly specifies, they do so "under the direction of the Attorney General."

True, a wise Attorney General will give sufficient professional latitude to each U.S. Attorney in order to best accomplish the prosecutorial and civil defense needs of each district. But latitude is not unaccountability - just as the refusal to micromanage is not an abdication of authority.

The Bush Administration Hardly Invented What Is Long-Established Removal Authority

History reveals that a defense of executive removal authority is far from merely the product of some wild-eyed theory of "unitary executive" invented by the Bush administration. Rather, it is -- as every president since Ulysses S. Grant has insisted -- a vital principle, consistent with "a faithful and efficient administration of the government." After all, said Grant, "What faith can an executive put in officials forced upon him, [or] those, too, whom he has suspended for reason?" Put another way, a boss without power to hire and fire will typically be crippled in his or her effectiveness.

The eight dismissed U.S. Attorneys may all be fine men and women; that is not inconsistent with their having been dismissed. The Constitutional system, as it has taken form over our history, puts the choice of dismissal solely in the President's hands (as he is chooses to be informed by his Attorney General). Accordingly, the President is within his rights to dismiss a U.S. Attorney even for the simple reason that he preferred someone else for the job.

Some have suggested at least some of the U.S. Attorneys were dismissed in order to shield criminal wrongdoing - that is, dismissed so that criminal prosecutions that they had overseen would fade away or be resolved with lenient plea agreements. Before making such serious accusations, however, the Congress ought to come forward with hard proof, not the whine of innuendo.

Moreover, and significantly, none of the dismissed prosecutors has come anywhere close to making that accusation. Surely, it should not be inferred.

In making its inquiry, then, Congress should be careful not to subvert what history has so well provided: the executive's ability to dismiss its officers is the structural mechanism by which the President "takes care" that the law is faithfully executed.


Douglas W. Kmiec is Chair and professor of constitutional law at Pepperdine University. He is also the former constitutional legal counsel to Presidents Reagan and George H. W. Bush

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