Tuesday, July 24, 2007

Puppet Justice Department (Part I of III)

Some people find it difficult to wrap their heads around the U.S. Attorney firing scandal. At first glance, it seems like a molehill-to-mountain type deal. (or, as Tony Soprano would say, "making a molehill out of it"). After all, the US Attorneys are appointed by the president, and, as you often hear the wingnuts say, they serve at his pleasure. Therefore, he can replace them as he sees fit.

Well, true enough. It is analogous to an employer/employee relationship in an at-will employment state, such that, absent any express contractual obligation, the employment relationship is "at-will", and just as the employee can sever the relationship (quit) at any time for any reason, the employer can sever the relationship (fire the employee) at any time "for any reason or no reason". This standard has been interpreted by courts to allow an employer to fire an employee for literally any reason (e.g., the employee is impolite. or too polite. or uses the word "polite". or has a tattoo of the word "polite" on an ass cheek, etc.).

But, no. It really doesn't mean any reason. It really means: any legitimate reason, any frivolous reason, or no reason at all, but not an illegitimate reason. Reasons falling into the "illegitimate" category include age, race, and gender. As an employer, you cannot fire someone for being old, young, black, white, brown, male, or female, etc. (You also cannot base your hiring decisions on any of these characteristics unless it is an essential characteristic needed for that specific employment (for example, you would be allowed to consider only hispanic applicants for the job of playing the role of Alberto Gonzales in your upcoming film -- working title: The Stooge)).

So, "at-will" employment has its limits, despite the oft-articulated "any reason or no reason" standard. Similarly, the US Attorney employment standard, "at the pleasure of the president", has its limits. The president can hire and fire these folks at his pleasure, for any reason or no reason, but just not for any illegitimate reason. And, here, the category of "illegitimate" reasons is expanded in one small way: the president cannot fire, or threaten to fire, US attorneys for a very narrow category of "political" reasons.

Might the president properly fire a US Attorney for not being sufficiently "loyal"? Clearly, yes. However, such a firing would be improper if the basis for the "loyalty" determination includes whether the fired US Attorney: (a) failed to prosecute Person D -- a person whom the white house wanted prosecuted, independent of the facts of the case, based merely on Person D's political affiliations, or (b) prosecuted Person R -- a person whom the white house did not want prosecuted, independent of the facts of the case, based merely on Person R's political affiliations.

Each of these scenarios would clearly constitute an improper exercise of the president's prerogative to hire and fire US Attorneys at his pleasure. This conclusion is not the subject of any debate. Even the current white house denizens -- masters of doublethink -- have not contended otherwise. The reason is simple: the administration of justice, here in the form of prosecutorial machinery, is a sacred trust, which must be exercised fairly, equally, and without favor. Not only that, but it must also have the appearance of being so. Otherwise, citizens lose respect for the law, the social contract is breached, and chaos ensues.

So, with that background, this is what appears to have happened with the US Attorney firings. The two congressional judiciary committees are now trying to determine whether the scandal amounts to actual impropriety (which would be severely, disastrously bad) or only an appearance of impropriety (which is merely a terrible debacle).

Which is it? The lengths to which the white house has gone to impede the investigations strongly suggests the former.


TXsharon said...

Thank you! I needed that to sort of crystallize it all.

I just popped over because I saw this: The Next American Fuhrer: Beyond Impeachment and I didn't want you to miss it. Like you, I think it seems improbable that they will easily give up all this power they have grabbed and leave it to the Democrats but, in the unlikely event that does happen, the suggestion has merit.

Gorilla said...

Good post. Look forward to Parts II and III.

Funny one about the new Alberto Gonzales movie.

See you at the Reunion.

Charles said...

So, what I hear you saying is that if Bill Clinton dismissed the U.S. Attorney because he was investigating Dan Rostenkowski, that would have been just as wrong?

HHL said...


Absolutely. I don't know that the situation you're referring to actually happened (and I'm too lazy to look it up), but I would most certainly agree that it would be just as wrong.

By the way, I'm not a "Democrat", I'm a principled believer in smaller and less intrusive government. And therefore you won't often see me defending Clinton (and you definitely will NEVER see me defending Janet Reno), though I do often look back fondly on Clinton's administration after seeing what the last 6.5 years have brought us. It's all relative.

HHL said...

oh, and to address your other comment over on Balkinization, I have roughed out the other two parts of the U.S. Attorneys series, but this FISA thing has derailed my interest in that issue, to the point where I'm pretty sure I won't ever finish them. But thanks for your interest (assuming it is sincere, of course).

Charles said...

That's too bad -- it was sincere interest in seeing what you've come up with so far -- can you post the outline / rough drafts at least? I'm glad you are not a Democrat, but my concern is that they are using a much different standard against Bush on this U.S. Attorney issue than they ever did against Clinton, or even Carter: