Power of attorneys

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.

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.

That ruling codified a precedent set six decades earlier when Congress failed in its effort to oust President Andrew Johnson for his unilateral removal of Secretary of War Edwin Stanton. The House of Representatives impeached Johnson in 1868 for his action, but the Senate fell one vote short, averting what many historians believe might have dangerously altered the balance of power between the legislative and executive branches.

Such history offers little comfort to the eight fired U.S. attorneys, who consider themselves casualties of inappropriate partisan politics. David Iglesias, former attorney for the district of New Mexico, told WORLD that his dismissal resulted from the administration's dissatisfaction that he did not race to press corruption charges against local Democrats prior to last November's election.

Iglesias, whose prosecution skills inspired the character played by Tom Cruise in the 1992 film A Few Good Men, cannot produce any smoking-gun evidence to support his contention. But two improper phone calls last fall from GOP lawmakers inquiring about the corruption case lend validity to his account-albeit circumstantial. In the first call, Iglesias evaded questions from Rep. Heather Wilson (R-N.M.), citing his legal obligation not to discuss sealed indictments. When Sen. Pete Domenici (R-N.M.) called soon after to inquire if he planned to file charges before November, Iglesias said he didn't think so. Domenici expressed disappointment and abruptly hung up.

Iglesias received a call from the Justice Department several weeks later asking for his resignation. He was shocked: "I asked main Justice why, and the response I got was, 'I don't know, and I don't think I want to know.' That was troubling, because normally when you tell someone it's time to move on, you at least give them a reason."

The reason came later-after Congress demanded the Justice Department explain itself. In a hearing before the Senate Judiciary Committee on Jan. 18, Attorney General Gonzales testified that he would "never, ever make a change in a United States attorney position for political reasons." Deputy Attorney General Paul McNulty told that same committee on Feb. 6 that the firings of all eight U.S. attorneys were for "performance-related" issues.

Those statements proved inaccurate on March 13 with the release of Justice Department emails revealing several non-performance-related issues, political considerations among them. Gonzales responded to those revelations with an apology, claiming that his staff made mistakes of which he was previously unaware. Kyle Sampson, Gonzales' chief of staff, promptly resigned. Michael Battle, the director of the Executive Office for United States attorneys, had already stepped down one week earlier for his poor performance in personally calling several of the attorneys to fire them on Dec. 7.

Such inconsistencies and overall mishandling of the situation continues to fuel suspicions that the Justice Department is covering up some illegal activity. A further revelation that Gonzales participated in a Nov. 27 meeting about the firings contradicts his claim that he was not involved in the process, upping the temperature of an already sizzling hot seat.

Conservative commentator Charles Krauthammer believes that alone is enough to warrant the resignation of Gonzales, who "has allowed a scandal to be created where there was none."

Indeed, if the firings of all eight U.S. attorneys were based on legitimate reasons, even legitimate political reasons, why have they resulted in two high-level Justice Department resignations and an impending showdown over executive privilege?

The answer for many Democrats and several Republicans is that Gonzales simply proved incompetent and must step down. But for Iglesias and his dismissed colleagues, such political fallout pales in importance compared to the impact on their professional reputations. "What would really settle this in my mind," Iglesias said, "is a written retraction from the Justice Department stating that performance was not the true basis."

Instead, the Justice Department has provided more details as to why it judged the attorneys' performance sufficiently poor to warrant dismissal. On March 6, William Moschella, the principal associate deputy attorney general, testified to the House Judiciary Committee that Iglesias had delegated too much responsibility to his first assistant, effectively handing over the running of his office.

Moschella went on to explain that fired attorneys Carol Lam of San Diego and Paul Charlton of Arizona maintained disagreements with the Bush administration over prosecutorial policies and priorities. Bud Cummins of Arkansas and Daniel Bogden of Nevada were let go to make room for new blood, specifically a personal friend of White House adviser Karl Rove in the case of Cummins. And John McKay of Washington state was dismissed due to concerns over his manner in advocating particular policies.

In an attempt to explain why such information took so long to surface, Moschella noted that "the Department-out of respect for the U.S. attorneys at issue-would have preferred not to talk at all about those reasons, but disclosures in the press and requests for information from Congress altered those best laid plans." He added that "just because you might disagree with a decision, does not mean it was made for improper political reasons-there were appropriate reasons for each decision."

Moschella did not offer explanations for the removals of Margaret Chiara of Michigan or Kevin Ryan of San Francisco, but some media outlets have speculated that the pair's reluctance to seek the death penalty in murder trials may have played a role.

Justice Department emails hint that a little-publicized 2006 addition to the Patriot Act provided another potential motive for the eight firings: The provision allowed the attorney general to appoint replacement U.S. attorneys permanently without nomination by the president or confirmation from the Senate. The House and Senate have since passed bills with overwhelming majorities striking down that measure.

Democratic leaders now aim to strike down Gonzales, but even success in that ambitious objective will not foster resolution. Sen. Chuck Schumer intends to mount a long, drawn-out investigation in hopes of coloring the 2008 presidential campaign with a massive Republican scandal.

The Bush administration stands in a tough spot of its own making: How to apologize for a botched cover-up yet continue to insist there is nothing to hide? Professor Jonathan Turley of the George Washington School of Law is astonished at the level of mishandling needed to generate such a sticky predicament: "This is not one train wreck. This is a train wreck where people rush to the scene and crash the train again."

-with reporting by Becky Perry in Washington, D.C.