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Power of attorneys

Politics | The botched firings of eight federal prosecutors have the White House playing defense and Congress smelling blood

Issue: "Street warfare," April 7, 2007

It's the biggest story in Washington, yet one over half the American public claims it isn't following. Despite the international war on terror raging overseas, Capitol Hill and many national media outlets appear obsessed with the mysterious firings of eight U.S. attorneys late last year.

Cries of scandal saturate headlines and echo in both chambers of Congress. Legal scholars claim that an important battle over the separation of powers is underway. Do these highly scrutinized dismissals warrant such attention? What is ultimately at stake?

A recent Pew Research survey of 1,048 Americans found that 57 percent of respondents were not following the story closely. Only 8 percent of people named it the top news event on their minds.

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Yet accusations of impropriety and calls for disciplinary action continue to spill from the mouths of Democrats and even some Republicans. Sen. Patrick Leahy (D-Vt.) charges that White House involvement in the firings undermines the apolitical integrity of federal prosecutors. The chairman of the Senate Judiciary Committee believes that a thorough investigation into why the attorneys were let go is critical to restoring public faith in the Justice Department.

Both the Senate Judiciary Committee and a House Judiciary subcommittee have authorized the use of subpoenas to extract testimony from White House aides as to whether the firings were politically motivated. President George W. Bush remains resolutely opposed to his aides making any sworn, public statements on the matter. He proposes private interviews as a conciliatory alternative, an offer that Leahy and other investigating lawmakers hotly reject.

Bush argues that because U.S. attorneys serve at his pleasure according to the Constitution, he is free to dismiss any or all of them at his discretion without congressional oversight or public inquiry. Indeed, past presidents have made sweeping personnel changes at the position without much fuss: Presidents Bill Clinton and Ronald Reagan each replaced 89 of 93 federal prosecutors within two years of taking office. Bush likewise installed 88 new attorneys within two years of his election in 2000.

The difference this time around hinges on whether the White House ordered the firings as a means of interfering with particular prosecutions. Reagan, Clinton, and Bush removed U.S. attorneys upon entry into office for general political reasons-namely to replace Democrats with Republicans or vice versa. Critics of these latest dismissals charge the Bush administration with specific political motivations-namely to punish the eight prosecutors for a lack of partisan favoritism.

That distinction between proper and improper political considerations is often lost in the popular debate over whether the firings were appropriate. Democrats eager to drown the White House in scandal make much of released email correspondence between Bush aides and Justice Department officials that include discussions of which attorneys to fire. Democrats cite such messages as proof of political meddling.

But long-time federal prosecutor Andrew McCarthy rebuts that notion. He is surprised that anyone would even question White House involvement, because "the removal or selection of a U.S. attorney is a White House decision." No concrete evidence has yet emerged to demonstrate any politically motivated interference with particular prosecutions.

Pepperdine law professor Douglas Kmiec, who served as assistant attorney general under Reagan and former President George Bush, explains that the Constitution requires Senate approval only for U.S. attorney appointments, affording the president unfettered authority to fire those same attorneys as he sees fit. Congress has no jurisdiction to parse the motives behind such decisions. "The separation of powers is at stake here," Kmiec told WORLD. "President Bush is legitimately concerned about whether Congress is, in a partisan way, seeking to create something out of nothing for the purpose of greatly limiting the scope of his oversight."

Bush has strongly resisted Congress in its efforts to circumvent executive privilege and has characterized as generous his offer for private interviews with his aides. Should Democrats issue subpoenas, White House spokesman Tony Snow said Bush would withdraw his proposal for voluntary cooperation, potentially sparking a drawn-out legal battle. The president seems poised to hold steady for such a showdown and has demonstrated similar resolve in his unwavering support of Attorney General Alberto Gonzales, who many Democrats and some Republicans say should resign.

Kmiec believes Bush has done well in "rising to the occasion in defense of his prerogatives. I hope he will stay principled throughout the coming weeks as the pressure continues to build."

History appears to side with the president: In the 1926 Supreme Court decision Myers v. United States, Chief Justice William Howard Taft wrote that any limitation on the president's power to independently remove executive officers could result in executive "paralysis" at the hands of "a partisan Senate and Congress." The majority opinion further determined that the Constitution's silence on protocols for removing executive officers implicitly denies the need for congressional approval.

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