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Scanning through a few newspapers today, I've seen what looks to be the newest GOP talking point about Attorneygate.  The line of argument goes:

"What part of 'serves at the pleasure of the president' don't you understand?"

Great question, right?

Well, maybe.

Not.

First I want to give credit where credit is due here.  There was a great overlooked diary yesterday by Commonweal on this topic.

I want to draw out a key point, because the reference in this diary demolishes the GOPs talking point.

First: Where did "serves at the pleasure of the president come from?" and what exactly does this mean?  

This isn't a line that comes from the Constitution.  So what is it about?  Where does it come from?

Well Thom Hartman over at Commondreams found the answer.

If we step back in the "way back machine" it turns out that on June 17, 1789 our Founding Fathers in congress were grappling with exactly this question.  The Constitution directly addresses the nomination process--e.g. the Senate's role of "advice and consent" (see Alexander Hamilton, Federalist #76 for more background)--and how executive office political appointees are hired, but it does not explain how they are supposed to be fired.

Well on that day in 1789 congress was exploring two possibilities:

  1. The Congress decides when to fire.
  1. The President has this authority.

Ultimately, the discussion settled on option #2.  The reasoning was sound--if you located responsibility within the Executive you will have clear lines of responsibility up to the president.  So the president should have the ability to fire an officer if the officer was found to be corrupt, or incompetent.  The alternative would be impeachment in the congress; however, this process would be too cumbersome; too "circuitous" in operation in most cases.

It is true by a circuitous operation, he [The president] may obtain an impeachment, and even without this it is possible he may obtain the concurrence of the senate for the purpose of displacing an officer; but would this give that species of control to the executive magistrate which seems to be required by the constitution? I own if my opinion was not contrary to that entertained by what I suppose to be the minority on this question, I should be doubtful of being mistaken, when I discovered how inconsistent that construction would make the constitution with itself. I can hardly bring myself to imagine the wisdom of the convention who framed the constitution, contemplated such incongruity.

But, our wily Constitutional Framer James Madison was a few steps ahead of the curve.  

OK, we've dealt with the easy case--removing a corrupt and/or incompetent officer. But what about a case where the officer is doing a good to great job?  

Can the president fire whoever he wants for whatever reason?

Let's read what James Madison had to say:

Now if this is the case with an hereditary monarch, possessed of those high prerogatives and furnished with so many means of influence; can we suppose a president elected for four years only dependent upon the popular voice impeachable by the legislature little if at all distinguished for wealth, personal talents, or influence from the head of the department himself; I say, will he bid defiance to all these considerations, and wantonly dismiss a meritorious and virtuous officer? Such abuse of power exceeds my conception: If any thing takes place in the ordinary course of business of this kind, my imagination cannot extend to it on any rational principle.

WOW. If the president were to wantonly dismiss a meritorious and virtuous officer, it would be an ABUSE that is beyond Madison's conception.

Strong words.

(Well how about 7, including 5 within the span of 24 hours?)

So no, the president CANNOT hire and fire whoever he (or she) wants for whatever reason.

But let us not consider the question on one side only, there are dangers to be contemplated on the other. Vest this power in the senate jointly with the president, and you abolish at once that great principle of unity and responsibility in the executive department, which was intended for the security of liberty and the public good. If the president should possess alone the power of removal from office, those who are employed in the execution of the law will be in their proper situation, and the chain of dependence be preserved; the lowest officers, the middle grade, and the highest, will depend, as they ought, on the president, and the president on the community. The chain of dependence therefore terminates in the supreme body, namely, in the people; who will possess besides, in aid of their original power, the decisive engine of impeachment.

In other words, in James Madison's view: If a president were to fire a meritorious and virtuous officer WITHOUT just cause, it would be grounds for IMPEACHMENT.

But, what does the Father of the Constitution know about the operation and application of the U.S. Constitution?

If we ever needed further clarification from the White House and its political officers (e.g. Rove and Miers) about why they should be COMPELLED to testify, and WHY it MUST provide documentation on the firing of 7 meritorious and virtuous officers, there it is.  

Originally posted to NotGeorgeWill on Wed Mar 28, 2007 at 10:21 PM PDT.

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Comment Preferences

  •  I'm sure Fredo would fire back (1+ / 0-)
    Recommended by:
    NotGeorgeWill

    that James Madison is pretty quaint.

    "There have been tyrants, and murderers, and for a time they can seem invincible. But in the end they always fall. Think of it. Always." -- Mahatma Gandhi

    by duha on Wed Mar 28, 2007 at 10:44:02 PM PDT

  •  there was a very similar (1+ / 0-)
    Recommended by:
    NotGeorgeWill

    diary up the other day along these same lines.

    Still, nice job!

    We need to keep pounding this home.

  •  Eye opening civic primer here (1+ / 0-)
    Recommended by:
    NotGeorgeWill

    Thanks!

  •  The art and science of impeachment (3+ / 0-)
    Recommended by:
    baahl, reflectionsv37, deha

    I have utterly avoided the impeachment debates on DKos, as I can find reasonable points on both "sides", and I've preferred to keep watching as events unfold.  My emerging view, however, is something along the lines of this:

    I want to initiate impeachment proceedings against Bush, and/or others in the administration, only at such time and to such extent that said proceedings will absolutely maximize the long-term damage to the Republican Party as a whole, and to the conservative political movement in general.

    What this means in practice is that I would support impeachment efforts if I feel that by taking such steps the Congress will help reinforce the growing disaffection of the public with the Republicans' actions.  But I would hesitate, and prefer to hold off on impeachment, if I felt that the public would be more inclined to see such moves as mainly partisan, excessive, vengeful, etc., and thus they might backfire by shifting some sympathy back toward Republicans.

    At present, the way the multiple scandals are unfolding so fast and so extensively, it's hard to imagine a course of events that could be more damaging, in itself, to Republicans' reputations.  I'd like to see this continue, as more and more revelations come out.  In this context, similar to how it worked with Nixon, voices calling for impeachment will continue to grow louder, to the point where, eventually (and maybe soon), it will become the natural next step, and few will be able to call it overstepping.  To put it another way, I'm happy to see Bush impeached in the public mind first, and then impeached in the halls of Congress.

    Yet it is not our part to master all the tides of the world, but to do what is in us for the succour of those years wherein we are set... -- Gandalf

    by dnta on Wed Mar 28, 2007 at 10:55:24 PM PDT

    •  this one paragraph (3+ / 0-)
      Recommended by:
      Odysseus, dnta, SharonColeman

      I want to initiate impeachment proceedings against Bush, and/or others in the administration, only at such time and to such extent that said proceedings will absolutely maximize the long-term damage to the Republican Party as a whole, and to the conservative political movement in general.

      The problem here is in delay
      the longer you go
      the greater the damage to the US as a whole.
      Party politics need to be set aside by both sides
      for the greater good of the country.
      Every day this administration is allowed to violate international treaties, violate civil liberties of not just US citizens but anyone it deems fit to in its faux war on terror, the more the world as a whole will rise up against it.

      Poverty and the homeless Out of sight and out of mind

      by betterdeadthanred on Wed Mar 28, 2007 at 11:16:32 PM PDT

      [ Parent ]

      •  Impeachment won't cure those (1+ / 0-)
        Recommended by:
        dnta

        If Bush is impeached Cheney takes over.  How would that change anything?

        If congress is spending time impeaching the president it is not spending time fighting those things the right way... with legislation.

      •  I hear you (2+ / 0-)
        Recommended by:
        deha, betterdeadthanred

        and I think it's a delicate balance.

        The only reason I want to be cautious in this respect is because I want to be sure that, when we bring them down, they'll never rise again.  The damage that they are doing to our country and the world is very real, but believe it or not they could do even worse, much worse.  

        I'm worried about the possibility -- which is very real, given the history of the past few decades -- that ineffective measures to oust the Bush cabal at this time, measures that might fall short of the complete discrediting and rejection of their regime and their philosophy with the public, could almost immunize them the next time around: kind of a "crying wolf" syndrome.

        Look at Reagan, for example.  All the shit that he got away with, all the damage that he and his ideology caused, and the country as a whole still perceives him in a favorable light.  And many want to "return" to Reagan-era policies and philosophy.  Reagan was not sufficiently taken down while in office, even though there was a Democratic Congress.  I don't want that to happen again.

        Yet it is not our part to master all the tides of the world, but to do what is in us for the succour of those years wherein we are set... -- Gandalf

        by dnta on Wed Mar 28, 2007 at 11:23:52 PM PDT

        [ Parent ]

        •  Impeach first... (0+ / 0-)

          A desperate and deranged man may try to start another war. If the articles of impeachment are prepared, ready, and available, it may deter said man from igniting what he professes to be "the end times." We want this to be the end of conservatism as we know it, not the end of the human race.

    •  I agree... Bush is gone in 2 years anyway (3+ / 0-)
      Recommended by:
      dnta, deha, NotGeorgeWill

      with a hostile congress.  The value of going after him personally is low compared with the value damaging the perception of the GOP in the eyes of the general public.

      Impeachment will probably come in time... even if it doesn't it is still a victory if we can shine the light on the depths of their corruption.

      •  But His Program Won't Be (0+ / 0-)

        Reagan/Bush I were gone in 1992 but if you'll remember, the cast of characters behind Iran Contra were never driven out of public life.

        The results were disasterous.

        One of the biggest mistakes the Democratic Party's ever made was not impeaching in 1987.

    •  Well-said (2+ / 0-)
      Recommended by:
      dnta, NotGeorgeWill

      I believe that what we're seeing is vindication of Pelosi's decision to take impeachment off the table. Oversight is starting to work, slowly but surely. The calls for impeachment will grow, and soon the Republicans will have to cut Bush loose for the sake of their party.  Which is, after all, their primary concern.

      What if the hokey-pokey really IS what it's all about? -Anon.

      by deha on Wed Mar 28, 2007 at 11:24:31 PM PDT

      [ Parent ]

    •  I go with betterdead (1+ / 0-)
      Recommended by:
      David R

      This is not valid argument.

      It proposes impeachment not to stop and punish a criminal for his personal crimes but to punish a whole organisation through the punishment of one person, a kind of reverse of collective punishment for a single crime.

      There is no doubt the republicans deserve it, but impeachment is not the tool for achieving that and to pervert it to that purpose is possibly to throw away the chance of acting in time to use it for the purposes for which it IS designed.

      This is not, and could not have been the purpose of impeachment and it should not be used for that now, especially not now.

      We don't need triangulation and party political strategy, we need people of principle and courage who are prepared to stand at the top of the cliff and stop the madman in the nation's driver's seat. Or at least reach over and grab the seat of the nation's pants as it begins its terminal plummet.

      You impeach a person, one who has committed high crimes and misdemeanours and is then held personally responsible.

      Uphold your constitution, stop triangulating; or you wont have anything left to triangulate for.

      Oh, and read budhydharama's piece

      The Number of the Beast 72-25

      by Deep Dark on Thu Mar 29, 2007 at 03:16:26 AM PDT

      [ Parent ]

      •  I was going to say something like this (2+ / 0-)
        Recommended by:
        Deep Dark, NotGeorgeWill

        You said it first.  To use impeachment as a partisan political weapon is to follow the Republican path of trivializing and discrediting our most important and serious laws and institutions.  Impeachment ought to be used in a sober fashion as a tool of last resort to remove from power an executive who is a danger to the people and the nation as a whole.

        "Every normal man must be tempted at times to spit on his hands, hoist the black flag, and begin to slit throats." H. L. Mencken

        by David R on Thu Mar 29, 2007 at 06:31:26 AM PDT

        [ Parent ]

        •  Um, you said it (0+ / 0-)

          "Impeachment ought to be used in a sober fashion as a tool of last resort to remove from power an executive who is a danger to the people and the nation as a whole."

          And if Bush and Cheney aren't this, then you're standard is impossible to meet.

          Never has there been a more criminal administration, one who's disrespect for the Constitution and the rule of law has been more apparent.  The guys make Nixon look like a choirboy.

          Impeach, and impeach now.  Hold these bastards accountable for what they have done and are continuing to do.

    •  Timing matters . . . (1+ / 0-)
      Recommended by:
      dnta

      The stronger the case the better.  I don't think we're there yet either in terms of public opinion.  The impeachment proceedings simply formalize widespread public anger with the criminal behavior of a public officer.  Once we have 60-65% of Americans saying "impeach Bush" then it becomes just a formality.  Right now we are probably at about 50-55% based on GWB's disapproval ratings.

      The reason I would mention "impeachable offense" in this context is because it helps demonstrate the seriousness of what George W. Bush and his team have done.  It helps people understand that these firings are extremely serious.  The "impeachable offense" issue also debunks the argument that Dear Leader can do "whatever he wants for whatever reason".  That line of reasoning is poisonous to a representative government in my view.

  •  What do you know... (2+ / 0-)
    Recommended by:
    betterdeadthanred, NotGeorgeWill

    Okay, so both the Senate and the House have authorized subpoenas to compel such luminous personages as Karl Rove and Harriet Miers to appear and give testimony. But I got to wondering if anyone has asked the US Attorney for the District of Columbia whether he is willing to enforce such subpoenas if they are executed.

    I went and looked a little and lo and behold, the current US Attorney for DC is one Jeffrey A. Taylor. He was appointed  in September of 2006. That would be about six months ago. He was previously...

    ... Counselor to Attorney General Alberto R. Gonzales. In this capacity, Mr. Taylor handles a broad array of matters, including oversight of the Department’s national security, terrorism, and criminal litigation and policy, as well as the operations of the Department’s law enforcement components.

    So anyone want to take any bets about whether we'll be actually seeing any subpoenas?

    This is enough to make a guy cynical.

    •  Finally got an answer on this one . . . (0+ / 0-)

      I've been curious about this one too, so I posed this question to John Dean in a discussion this past Saturday.  He didn't think this would be an issue:

      Response to Question for JHD [sic] ... (32+ / 0-)

      Mr. Taylor could not refuse to undertake any of his responsibilities without the wrath of the judges of that court coming down on him, for he is, after all, also an officer of the court. Not likely he would play such a game.

      J.Dean

      by jwdmkd on Sat Mar 24, 2007 at 11:58:06 AM PDT

      [ Parent | Reply to This ]

      Also the House and Senate have recently voted to revoke the Patriot Act's "emergency appointment" provision.  Once the law is signed off by the president or vetoed and overridden by a congressional vote, USAs appointed under the Patriot Act law will have 120 days left on the job.  (If the President does not provide new candidates for nomination to the Senate, the judge in charge of the circuit court will find a replacement--same as under the 1986 law which was replaced by the 2006 Patriot Act provision).

      Still something to watch.

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