- The Washington Times - Wednesday, March 28, 2007

The contrived controversy over the firing of eight U.S. Attorneys is largely an exercise in imaginary indignation. Congressional Democrats suggest that some of the firings may have been improper and demand to know the reasons for each of them. By what authority they make such demand is not clear, since the Supreme Court has ruled that, with limited exceptions, Congress has no voice in the dismissal of federal officers.

After the Civil War the radical Republicans in Congress sought to limit the power of the executive to dismiss political appointees. A statute passed in 1876 provided that postmasters should be appointed to a term of four years with the advice and consent of the Senate, just as the law provides now for the appointment of U.S. attorneys. However, the 1876 act also provided that a postmaster could not be removed by the president except with the advice and consent of the Senate. In 1920, President Wilson removed a postmaster whose term had not yet been completed. The postmaster sued in the Court of Claims to recover the salary he would have been owed from the day of his dismissal to the end of his term. The Court of Claims ruled against him and he appealed to the Supreme Court.

In 1926, the Supreme Court held that the requirement for Senate approval of a dismissal was unconstitutional. Chief Justice William Howard Taft, writing for the majority, stated that in order for the president to fulfill his constitutional duty, he must be able to discharge federal officers whose performance in office was not in accordance with his desires and that this responsibility could not be shared with Congress. Neither the statute providing for the appointment of U.S. attorneys nor the Supreme Court opinion makes any attempt to define what would constitute proper or improper reasons for dismissal. In fact, nowhere is there any suggestion that the president would need any reason to dismiss a federal officer who is not covered by the Civil Service Act.

If Congress can have no voice in the removal of U.S. attorneys and no reason is required to dismiss them, then by what authority do members of Congress demand to know why the attorneys were fired? Well, they do have subpoena power. However, since none of the documents they demand can possibly relate to any legitimate legislative purpose, it is not clear that the courts would uphold such subpoenas if the president refused to produce the documents.

Why, then, are they doing this? I can’t read their minds, but I think I can make a couple of educated guesses as to what they are aiming for. First, since the Bush administration has complacently provided them with a mountain of documents, they can hold hearings and ask an endless series of questions relating to minutiae hoping to trip up a faulty memory and open the door for a prosecution for perjury. (Remember Patrick Fitzgerald and I. Lewis “Scooter” Libby.) The second reason is simple. By constantly hyperventilating about a “scandal,” even if it is imaginary, eventually you get some people to believe it. In other words, they are giving up their responsibility to govern in lieu of using their majority to campaign for 2008.

What can the president do to defend himself? The first thing is to get rid of Attorney General Alberto Gonzales. This is not the first mess for Mr. Gonzales. Second, find a replacement who is willing to tell Congress that he has no intention of abiding by subpoenas which relate to no legitimate legislative purpose. If the Democrats wish to spend the next two years battling the administration over meaningless trivia, let them do so. In 2008, Republicans can correctly go before the public and, stealing a page from Harry Truman, label the 110th Congress the “do-nothing Congress” that cares nothing about the serious problems facing our country. Either it does not know or does not care about the limitations which the Constitution places on its powers.

James H. Warner is a retired corporate counsel. He served as a domestic policy advisor to President Reagan from 1985 until 1989.

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