The Bush Administration and its defenders have incessantly chanted that United States Attorneys serve at the pleasure of the President. Most people intuitively understand this talking point because most people work under the same arrangement. They reason, if my boss can fire me whenever he wants, why can’t the president do the same to people who work for him?
But the legal system is fundamentally different from and more important than selling stuff for XYZ Corp. The legal system pursues a noble ideal – Justice - while XYZ Corp’s goal is to sell more and more stuff.
And the harms can be much greater. Joseph Story, the leading 19th Century Constitutional scholar and former Supreme Court justice, said:
Indeed, it is utterly impossible not to feel, that, if this unlimited power of removal does exist, it may be made, in the hands of a bold and designing man, of high ambition and feeble principles, an instrument of the worst oppression and most vindictive vengeance.
All of us have a stake in the fairness of the legal system. We are, in a very real sense, its owners. We hire Presidents to temporarily manage it for us. When Chief Justice John Marshal said in 1803 that we are a government of laws, he expressed the fundamental truth of our constitutional system. Such a government depends on the rulers’ ability to distinguish law and policy from politics and personality.
The US Attorney scandal shows what happens when the government stops policing that boundary and politicize law. The politicization of law is now the frame within which all of the DOJ decisions are seen. The decisions that prosecutors make are never easy and often are controversial. When people have confidence in the rule of the law, they can accept even difficult decisions. But when people lose confidence in the rule of law, their willingness to comply with the law deteriorates.
Cases are dismissed every day on appeal; defendants are indicted or acquitted every day but these decisions are now seen in a different light. The political frame undermines the credibility of all 93 USA’s and the entire DOJ. As the Supreme Court said, "it is quite evident that one who holds his office only during the pleasure of another cannot be depended upon to maintain an attitude of independence against the latter’s will."
Politicizing the Department of Justice has a corrosive effect on everyone’s belief in the rule of law. For the rule of law to work, it depends on our cooperation and trust. If that breaks down, then we are no longer a government of laws. Thus, this fight is about what kind of Constitution we have and how the government uses its constitutional power. The harm from making a bad choice here will be significant and lasting.
The Bush Administration’s attempt to exert unprecedented control over the Department of Justice and the United States Attorneys is part and parcel of a theory of presidential power – known as the unitary presidency – they have vigorously propagated. This places the USA scandal in line with signing statements, torture memos, extraordinary renditions, secret prisons, unlimited detentions, denial of habeas corpus, expanded executive privilege, warrantless wiretapping and so forth. When the DOJ slipped into the Patriot Act the provision that allowed the AG to appoint interim USA’s indefinitely, they just weren’t fixing a minor flaw. They were embedding the unitary presidency into law.
Simply put, the unitary presidency is incompatible with the rule of law. In this view, the President has the complete and unfettered power to do whatever he wants to do in military matters. He can spy on whoever he wants, detain whoever he wants, torture whoever he wants because, as Richard Nixon aptly put it, "if the president does it, it is not against the law."
But it does not stop there. Even in ordinary matters, according to unitary presidency enthusiasts, the President trumps Congress. Thus, the president can choose which parts of validly enacted laws to follow and which to ignore, he can decide which judicial decisions to follow and which to ignore, and what information to withhold or to disclose to Congress. And, apparently, he can fire USA’s simply because he can. Remember Kyle Sampson’s words in a December 2006 email: "What’s the point of having power if we don’t use it?"
If we adopt the unitary presidency theory, we will deform our constitutional structure. The framers wanted a strong executive but not an all powerful one. They feared that an unrestrained commander in chief would become a "king on horseback" and a tyrant. And yet, according to modern unitary presidency theorists, the commander in chief clause authorizes all of the actions I mentioned above for as long as the war lasts. And how long will that be? Well, if the goal is to rid the world of terrorists, it will go on forever. How close are we to that horseback riding king?
Perhaps the election cycle will mitigate the most extravagant claims of unitary presidency theorists. The danger, however, is that bits and pieces of this theory will be embedded in law. This means that we need to treat the USA crisis as a symptom of a much larger disease. We cannot depend on the inherent goodness of this president or any president to do the right thing. To paraphrase Madison, if we were angels, we wouldn’t need government but if non-angels are running government, we must strike a balance governing and controlling the governors. We need to set up structures that make it easier to do the right thing and harder not to, that involve all of the branches of government, and that provide a level of public accountability.
Part II will explain why US Attornys should only be removed for "good cause."