Dismissals of U.S. attorneys fit Bush pattern: Bypass Congress
By Ross K. BakerWed Mar 21, 6:18 AM ET
In the past, President Bush has likened his own travails to those of Abraham Lincoln, but in the current controversy over the firing of a number of U.S. attorneys, a more appropriate historical soul mate would be Andrew Johnson.
In 1868, Johnson was impeached by the House of Representatives for violating the Tenure of Office Act, which forbade him from removing political appointees without the consent of the Senate that had originally confirmed them. Johnson escaped removal from office, and the Tenure of Office Act was properly repealed in 1887, but the issues that it raised echo today.
Can a president unilaterally fire those who have been nominated to federal posts and who have been duly confirmed by the Senate? The answer, unequivocally, is yes. But typically, when these officials depart, they jump overboard rather than wait to be pushed.
All political appointees know that they need to have in their desk drawer an undated letter of resignation to present to the incoming president whenever there is a change of administrations. It doesn't even matter if the outgoing and incoming presidents are of the same party. So what's the big deal about sacking a handful of U.S. attorneys? After all, when Bill Clinton took office he fired all of them except Michael Chertoff - the current secretary of Homeland Security - a real bloodbath compared with the Bush dismissals.
Two things are different: the timing and the circumstances.
The mass resignations of U.S. attorneys at the start of a new term are routine, and the partisan calculations that go into choosing their successors are an accepted part of federal patronage politics. But once they are in office and processing cases, dismissals are rare.
David Burnham, co-director of an organization that monitors and analyzes federal data, said on National Public Radio earlier this month that Presidents Nixon, Carter and Clinton each fired one U.S. attorney. To his recollection, though, the firing of eight was "unprecedented."
More problematic, even than the timing, are the motives and circumstances of the dismissals. The administration argues that substandard performance led to the dismissals. But what about the inquiries made of New Mexico's U.S. attorney David Iglesias by two congressional Republicans, Sen. Pete Domenici (news, bio, voting record) and Rep. Heather Wilson (news, bio, voting record)? The two placed calls to Iglesias to ask whether the investigation of local Democrats would lead to prosecutions before Election Day last year. New Mexico is a swing state; Wilson was in a particularly tight re-election race and could have used the political boost from the prosecutions.
A call from a staff member of either lawmaker to a U.S. attorney inquiring about an ongoing investigation would have been unusual, but to have the members themselves call and, at least in Iglesias' recollection, lean on him, is unusual and troubling.
Dig a little deeper and you realize that behind these firings lurks the little-known provision recently inserted into the USA Patriot Act empowering the attorney general to temporarily fill U.S. attorney vacancies without Senate confirmation. The purported reason for this change in the law was that if a terrorist strike killed scores of U.S. attorneys, vacancies could be quickly filled by bypassing a sometime cumbersome Senate confirmation.
Closer to the truth, perhaps, is one reason put forth in a memo from Attorney General Alberto Gonzales' chief of staff: It was a deft sidestepping of senatorial courtesy that gives U.S. senators a strong voice in who is nominated as a U.S. attorney in their states.
If the Bush administration's record of disdain for the constitutional principle of separation of powers was not so blatant, the uproar over the firing might easily be dismissed as partisan swordplay on the part of the Democrats. But in light of such actions as the president's efforts to conduct surveillance without court approval and his arrogant use of signing statements to thwart the will of Congress, the dismissals and the plan to circumvent the advice and consent of the Senate assume more ominous dimensions.
Ross K. Baker is a political science professor at Rutgers University. He also is a member of USA TODAY's board of contributors.
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