March 10, 2007
The Libby Verdict VI Posted by John Steele Gordon at 10:30 AM EST I’m glad that Alexander Burns likes my idea for handling politically sensitive cases in the federal government. It was a somewhat off-the-top-of-my-head suggestion, and, obviously, looking at how the various states have decided to handle such cases and picking the best ideas should be part of any attempt to reform the system. One of the greatest strengths of our federal system is that we have 51 laboratories in which to incubate good ideas (and expose bad ones). Mr. Burns writes, “The replacement of U.S. attorneys at the beginning of a President’s term is partly political, certainly, but it also has to do with the President’s right to delegate his authority as he pleases.” I’m afraid I don’t see why he can delegate as he pleases on the day after inauguration and not on other days. It seems to me that those who work for the executive branch are, with rare exceptions, either under the civil service system or they serve at the pleasure of the President, period. The President has the power—and thus the right—to fire those in the latter group whenever it suits him to do so. Of course he has to take any resulting political heat, which is a real constraint on his freedom of action. As Richard Nixon found out after the “Saturday Night Massacre,” that heat can be considerable to put it mildly. I believe—perhaps someone can confirm this—that the firing of Archibald Cox, et al., was when the term “firestorm” entered the American political lexicon. He writes, “Back to the case at hand. Even for the firings that were not intended to impede investigations . . .” I wonder if Mr. Burns isn’t begging the question here. To fire a U.S. attorney in order solely to impede a lawful investigation would be tantamount to an obstruction of justice, and no such thing has been shown, merely asserted. I note that Senator Pete Domenici of New Mexico, involved in one of these firings, has lawyered up, which might indicate some fire beneath all the usual smoke, but I find it hard to believe that President Bush—whose political capital at the moment is minuscule—would invite so much additional trouble for so little possible gain. He writes, “In a little-known provision of the Patriot Act, the President was granted the authority to install U.S. attorneys indefinitely and without Senate approval, in the case of a security emergency. . . . I hope he’ll agree, though, that a national security law should not be misused in such a political fashion.” I’m happy to agree with that, provided Mr. Burns will agree that the Senate minority should not misuse Senate rules to prevent a timely up-or-down vote on presidential nominees.
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