U.S. Attorney Firings: The Plot Thickens
WaPo’s Dan Eggen reports suspicious circumstances in the firing of former U.S. Attorney Carol Lam:
The U.S. attorney in San Diego notified the Justice Department of search warrants in a Republican bribery scandal last May 10, one day before the attorney general’s chief of staff warned the White House of a “real problem” with her, a Democratic senator said yesterday. The prosecutor, Carol S. Lam, was dismissed seven months later as part of an effort by the Justice Department and the White House to fire eight U.S. attorneys.
A Justice spokesman said there was no connection between Lam’s firing and her public corruption investigations, and pointed to criticisms of Lam for her record on prosecuting immigration cases.
Sen. Dianne Feinstein (D-Calif.) said in a television appearance yesterday that Lam “sent a notice to the Justice Department saying that there would be two search warrants” in a criminal investigation of defense contractor Brent R. Wilkes and Kyle “Dusty” Foggo, who had just quit as the CIA’s top administrator amid questions about his ties to disgraced former GOP congressman Randy “Duke” Cunningham.
The next day, May 11, D. Kyle Sampson, then chief of staff to Attorney General Alberto R. Gonzales, sent an e-mail message to William Kelley in the White House counsel’s office saying that Lam should be removed as quickly as possible, according to documents turned over to Congress last week. “Please call me at your convenience to discuss the following,” Sampson wrote, referring to “[t]he real problem we have right now with Carol Lam that leads me to conclude that we should have someone ready to be nominated on 11/18, the day her 4-year term expires.”
His colleague, Amy Goldstein, reports that David Iglesias, who was ostensibly fired for insufficient vigor in pursuing voter fraud allegations, was twice singled out by the DOJ as an exemplar in handling voter fraud cases.
Iglesias, a Republican, said in an interview that he and the U.S. attorney from Milwaukee, Steven M. Biskupic, were chosen as trainers because they were the only ones identified as having created task forces to examine allegations of voter fraud in the 2004 elections. An agenda lists them as the panelists for a session on such task forces at the two-day seminar, which featured a luncheon speech by Attorney General Alberto R. Gonzales.
According to Iglesias, the agency invited him back as a trainer last summer, just months before a Justice official telephoned to fire him. He said he could not attend the second time because of his obligations as an officer in the Navy Reserve.
Now, these things could be coincidental. U.S. Attorneys handle very sensitive, high profile cases for a living. It may well be that several of the 85 that were not fired were involved in cases that had uncomfortable implications for Republican figures. It may well be that Iglesias had serious problems of which were are unaware and that the blanket “voter fraud” explanation given for the firings did not apply to him. Further, “at the pleasure of the president” provides a flexible rationale for firing a political appointee, covering an infinite range of sins of omission and commission.
Still, this all looks rather suspicious. While there’s no question but that the president has the right to fire any U.S. Attorney at any time, for any reason, it’s not customary to do so in mid-term. (Although, in the case of Lam, her four-year appointment simply expired and was not renewed.) Further, senior administration officials, including the Attorney General, have told Congress that “performance” rather than politics was behind these firings. It would certainly behoove the president to get out in front of this, quickly, by offering more detailed explanations beyond AG Gonzales’ rather vague “mistakes were made” statement.
UPDATE: Margaret Talev and Marisa Taylor of McClatchy Newspapers report that DOJ will be providing more information today:
Justice Department officials originally told Congress that the U.S. attorneys had been dismissed for poor performance. But since it’s become known that most of the attorneys received positive job evaluations.
Last week, the Justice Department released e-mails showing that loyalty to President Bush and Attorney General Alberto Gonzales was among the criteria used to judge U.S. attorneys’ performance and that Rove and former White House counsel Harriet Miers were deeply involved in discussions leading up to the dismissals.
Roehrkasse said the Justice Department would provide additional e-mails to Congress on Monday. The documents were to have been surrendered last week, but Justice officials delayed the delivery, saying they needed more time to prepare them.
One change seems a very likely consequence of all this:
Also this week, the House and Senate are scheduled to vote to undo a law quietly passed last year that stripped the Senate’s power to reject interim U.S. attorneys the administration might pick to replace ousted prosecutors.
[…]
Sen. Arlen Specter, R-Pa., the top Republican on the panel, said Congress should consider writing legislation to require the Justice Department to show cause if the administration wants to remove one of its U.S. attorneys. “Congress has the constitutional authority to set some parameters and guidelines,” Specter said on “Fox News Sunday.” “We don’t really want to interfere with the president’s basic right to set policy. If he wants immigration cases emphasized, his U.S. attorneys ought to do that. Whatever classifications he wants ought to be followed. But we’re learning from this experience. If we find there’s a way to better regulate this kind of a situation, Congress ought to act.”
That seems well within Congress’ prerogative.
UPDATE: Anderson questions whether this is within Congress’ authority. Upon reflection, it’s almost certainly not. While President Andrew Johnson was impeached for (ostensibly) violating the Tenure of Office Act, which forbad him firing a cabinet secretary without congressional approval, the Supreme Court ruled in Myers v. United States (1926) that the President has plenary power to remove executive branch officials.
Are we really to believe that the actions of the U.S. Attorneys in the various districts are not themselves politically motivated?
Hm. Does the “show cause” idea really fall within the Congressional prerogative?
My understanding is that the President can fire whom he likes, subject to the Senate’s confirmation of a replacement.
I’m open to making an exception for federal prosecutors, because they should be less political than, say, a Cabinet member; but I’m curious about Congress’s power to do that.
My understanding is that the constitution requires that the President appoint principal officers (like the Attorney General) with the advice and consent of the Senate, whereas, under Article 2, section 2, cl. 2, the appointment of inferior officers (like US Prosecutors) is controlled by statute, and Congress has the express power to dictate the terms therein.
So, while Congress may or may not be able to control the dismissal of prosecutors, it has strict authority to dictate the appointment of their replacements. It’s well within Congress’ perogative to remove the provision of PATRIOT allowing the AG to appoint replacements.
However, while Myers allows the removal of purely executive officials, Humphrey’s Executor allows Congress to limit the President’s removal authority to the heads of “independent” departments. The question is thus whether the Justice Department is “independent.” While it seems a purely executive function on its face, a significant amount of legislative function has been delegated to Justice through statutes (like the scheduling authority under the Controlled Substantces Act), and thus it could easily constitute an “independent” agency (indeed, the term has been widely bandied about by Congress and the media). This isn’t an obvious case in either direction; ultimately, the court might have to decide on the constitutionality of such a statute, and it will be a 5-4 split one way or the other (meaning it’s hardly settled law).
Ah, so under Billy’s read of Article II, the Congress could probably put sufficiently stringent requirements on a midterm U.S. attorney replacement that the Executive would be reluctant to dismiss one without cause.
Exactly how that would work in practice is another question.
First Rule of the Bush Administration: When they tell you anything, the opposite is most likely true.
Here’s Article II, Section 2 in its entirety:
Emphasis added. It seems that the only distinction as to the “inferior officers” is that Congress may give up its right to the advice-and-consent role.
An excellent FindLaw article sheds additional light. My reading of the essay is that purely executive, policymaking officials are totally within the president’s right to fire but that Congress may designate, by statute, certain officials to be quasi-executive. The classic example is the Independent Counsel.
Great cite James. I did notice this:
Citations omitted. Those quotes (and the omitted cites) are from Myers, which would seem to indicate that Congress does retain the power to limit the removal of inferior officers.
I should have said those quotes were cited with approval in Myers, not directly from it.
Constitutionality aside (we can always amend the Constitution, I suppose), what makes sense for U. S. attorneys? Should they be elected? Appointed from a pool? Competitive examination?
Should their appointments be confirmed by the Congress? Advise and consent and all. Although it does seem a little odd to try to de-politicize appointments by giving a greater role to what has generally been thought of a the most political of the branches of government.
If they’re political patronage jobs, perhaps we should be a little more muted in our criticism when they’re treated as political patronage jobs.
Dave,
Good question. I’ve always thought that requiring all the Congressional hoo-hah had another effect (if not purpose) in that it made the candidate’s record more publicly known, keeping even a completely in-the-bag Congress from approving talentless hack cronies without there being some record of it being noted that they have no experience at all.
Of course, Mike Brown might disagree….
More in a similar vein at Balkinization.
The power to fire isn’t clearly mentioned in the constitutional text, which is something that should be significant in these discussions but often isn’t. This seems to me to be one of those areas where if the President abuses his or her authority, Congress should attempt to rectify the situation. Forcing the President to provide some reason for firing US Attorneys – assuming the statute would be veto-proof – seems like a good way to address concerns about the independence of the prosecutorial power. It doesn’t square with unitary executive theory, but that’s not fatal.
Brett,
Good to hear from you!
I think Congress legitimately has a role here in checks and balances. The power to hire, though, usually comes with the power to fire. SCOTUS has been pretty inclined to support that power, absent extraordinary circumstances.
OTOH, Congress could almost certainly re-authorize the office as one with limited civil service protections by creating an Office of the U.S. Attorney as an independent agency outside the DOJ, essentially making the USAs akin to the FBI Director or the Federal Reserve governors.
Re Iglesias as an “exemplar”:
Having created a “task force” to examine allegations of voter fraud may have made him unusual among U.S. Attorneys generally. But “task forces,” like committees and commissions, are sometimes used to bury ideas and tasks, not to further them. Iglesias’ task force” included the New Mexico secretary of state — an elected Democrat who’d already publicly dismissed those allegations. Does that sound like a hard-nosed federal investigation, or a political sop?
That AG-AG also appeared at a seminar where Iglesias spoke on that subject means essentially nothing. Iglesias’ original selection and his being asked back was probably done by some comparatively low-level DoJ bureaucrat. Neither means that AG-AG himself — nor any other top WH or DoJ brass responsible for evaluating U.S. Attorneys’ performance in addressing the administration’s top enforcement priorities — thought Iglesias was an “exemplar” with respect to investigating and prosecuting voter fraud cases.
Recall that Gore carried New Mexico by a grand total of 366 votes in 2000, and that Bush carried it by less than 1% (under a 6000-vote margin) in 2004. There were widespread indicia of major vote fraud in New Mexico in 2004 from both sides: Republicans alleged phony registrations; Democrats alleged tinkering with voting machines. Iglesias himself was quoted as saying, when he set up the task force: “It appears that mischief is afoot and questions are lurking in the shadows.”
Yet the proof of the pudding is in the eating, and 2-1/2 years after the 2004 election, there have been no indictments in New Mexico — zero, zip, nada. That strongly suggests that either there was no need for a “task force” to begin with, or that the task force — and the person directing it — didn’t do a very good job.
Exemplar? That’s an examplar? Maybe Iglesias is an exemplar in papering over voter fraud, but prosecuting it?