Thursday, March 15, 2007

Politics, power and law

Was the clumsy, politically-amateurish, nakedly partisan and unprofessional behavior of the Bush administration in dismissing eight U.S. attorneys last December ("the Gonzales Eight") some kind of unprecedented effort by the executive branch to promote its policy preferences through the Department of Justice?

Yes and no.

Despite the effort of some legal commentators to romanticize the Justice Department as an institution insulated from politics and devoted to the mysterious mistress of The Law, the truth is that the department is no more apolitical than any other executive branch organ. Attorney Generals have always reflected the policy preferences of the administration in power, as have political appointees at various levels within the department. True, most Americans don't vote for the Attorney General, the Solicitor General or the Assistant Attorney Generals who head the civil, criminal, civil rights and other important divisions within the Justice Department. For the kind of voters whose blood boils when they read about the current adventures of the Gonzales-led Justice Department, who will head the Justice Department often matters in their internal voting calculus, and matters a lot. Few things in life are certain other than death, taxes and annual futility of the Chicago Cubs; one thing you can add to that list is that perhaps no one contemplating whether to vote for Hillary Clinton, Barack Obama or John Edwards is keeping their fingers crossed that the winner will keep Alberto Gonzales on (assuming he is still AG next week) or bring John Ashcroft out of retirement. Presidents have the right to appoint persons to fill political positions in the executive branch with people who reflect their policy preferences. And that right extends to the president's power, through the Attorney General, to fire the sitting 93 U.S. attorneys that will remain in office when the next president takes office in January 2009.

President Clinton asked for the resignation of all 93 U.S. Attorneys when he took office, a common practice for incoming presidents looking to reshape the executive branch. Other presidents prior to Clinton, including Bush I, made similar decisions. No surprises there, nor should there be. But the decision of Gonzales, along, evidently, with higher-ups in the White House such as Harriet Miers and Karl Rove, and his inner-circle within the Justice Department, D. Kyle Sampson and Deputy Attorney General Paul McNulty, to sack eight U.S. attorneys for reasons not related to performance during a presidential term is unprecedented. A study released last month by the Congressional Research Service found that only eight U.S. Attorneys in the last 25 years had been dismissed or resigned for reasons unrelated to taking new positions either in private practice, an Article III judgeship, a new political appointment or some other professional position. Two were dismissed for cause; three resigned for reasons associated with unfavorable publicity; the remaining three resignations have no clear explanation. What is clear in this case is that the current administration decided to fire these eight U.S. Attorneys either to make way for administration cronies or as punishment for prosecuting (or not prosecuting) cases important to key officials in the White House or Congress.

The Decider has already made the obligatory statements that he will stand by his attorney general in this case, calling reaction to Gonzales's cluelessness about his staff's shenanigans "overblown." Whatever. And Donald Rumsfeld was the best Secretary of Defense ever until someone, maybe even the Decider, asked for his resignation last October.

Politics and partisanship are not always the same thing. Presidents have the right to use the executive branch to advance the interests of the voters that elected them. And while far too many lawyers wax sanctimonious about "the rule of law" and fail to acknowledge that law is simply the outcome of political bargaining, they do have a point when they say that the law, once in place, should be enforced evenhandedly and with professionalism. A STOP sign is a STOP sign. Argue and debate whether we need one; but once in place, the rule applies to everyone.

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