Preet Bharara, former United States Attorney for the Southern District of New York, provided us with some political drama this weekend. The drama was in his refusing to go quietly. Before going, he burned and raved a bit.
On Friday, Attorney General Jeff Sessions had instructed 46 officials at the Department of Justice, appointed by Barack Obama by and with the advice and consent of the Senate, to resign their positions. That is to say, they are politically-appointed officials, and they were fired, by Donald Trump.
We do this in the United States. Official positions responsible for the fair and independent prosecution of justice are still handed out and taken back according to partisan affiliation, in a style more like a 19th-century system of political spoils.
Preet Bharara had not gone along with it. By the close of Friday, he had not submitted his resignation as he had been told. Saturday morning, probably, he called up the New York Times, and told them he would not be submitting his resignation on Monday, either. Then, we can guess, Bharara turned off his cell phone so Sessions could not easily call him up, and chose not to look at his email.
This was all very dramatic, until mid-afternoon, when Bharara informed the nation that he had just been fired, in a tweet.
Preet Bharara, the Manhattan federal prosecutor who was asked by President Trump to remain in his post shortly after the election, was fired on Saturday after he refused an order to submit his resignation.
Mr. Bharara’s dismissal capped an extraordinary showdown in which a political appointee who was named by Mr. Trump’s predecessor, President Barack Obama, declined an order to submit a resignation.
“I did not resign. Moments ago I was fired. Being the US Attorney in SDNY will forever be the greatest honor of my professional life,” Mr. Bharara wrote on his personal Twitter feed, which he set up in the last two weeks.
Preet Bharara Is Fired After Refusing to Step Down as U.S. Attorney, Maggie Haberman, New York Times
One theory says that Sean Hannity caused this. That Donald Trump was watching Sean Hannity Thursday night, where Hannity was talking about the need for a purge, and that by Friday noon, the purge at the Department of Justice had been done.
A tweet from Preet Bharara, though, seems to show him knowing his day as district attorney was coming to a close, before Sean Hannity had suggested it to Donald Trump watching the TV.
I do not mean to debate American history with Sean Hannity here. His piece quotes one Republican congressman talking about the need to deal with seditious people within the Department of Justice, and another about the need to purge leftists. There is little point. But this quote is convenient for where I am going:
But while Lincoln sought to unify his party through these cabinet selections, he also cleaned house in the federal government. He fired more than 75 percent of executive branch employees, at the time nearly 1,200 people. Why? He had reason to fear they could be disloyal.
Sean Hannity: Trump must purge deep-state bureaucrats now, Sean Hannity, Fox News
Abraham Lincoln would have cleaned house in the federal government, replacing large numbers of employees, simply because the system then was a corrupt and inefficient handing out of political spoils.
District attorneys serve at the pleasure of the President, we will say. This firing of the politically-appointed U.S. attorneys is normal, some of us.
Except, not so fast. Ideas about the removal power of a president have a complicated history.
[N]o overarching principles dictate precisely when, and under what conditions, presidents can remove executive officials.
Executive Power of Removal, Dictionary of American History
Calvin Coolidge appointed William E. Humphrey to the Federal Trade Commission in 1925. In 1933, in the midst of economic crisis, Franklin D. Roosevelt fired him, for policy differences over the New Deal. Humphrey continued showing up to work. In 1934, Humphrey died. In 1935, his widow continued with a lawsuit for unpaid wages. Roosevelt had made the mistake of admitting that the firing was over policy differences. Going to the Supreme Court, she won.
The case is perhaps the most obscure of the three “Black Monday” decisions of May 27, 1935, setting back the New Deal. It is not as famous as the bank that got the Farm Bankruptcy Act declared unconstitutional. It is not as famous as the chicken dealer who managed to get the National Industrial Recovery Act declared unconstitutional. But of the three of them, the case is said to have most bothered Roosevelt, and to have most led to the court packing plan. And though perhaps obscure, it is also said, perhaps ignoring a central distinction, to be the foundation of the modern administrative state.
The central distinction is of executive power, versus quasi-legislative and quasi-judicial powers existing within the executive branch. We get a legal framework of some agencies being strongly independent of a president from this.
Presidents cannot fire all high-level government officials. Some of them have protection against removal.
At least in theory.
On October 20, 1973, Richard Nixon ordered Attorney General Elliot Richardson to fire Special Prosecutor Archibald Cox. Richardson refused, and resigned his position.
Nixon then ordered Deputy Attorney General William Ruckelshaus to fire Cox. Ruckelshaus refused, and resigned his position as well.
Solicitor General Robert Bork was driven to the White House in a limousine, sworn in as Acting Attorney General, and signed a letter firing Cox.
In November, a district court found that the dismissal of Cox was illegal. In practice rather than theory, however, when willing to accept high political cost, a president can manage to fire even a special prosecutor investigating allegations of presidential crime.
In 1961, by and with the advice and consent of the Senate, John F. Kennedy appointed Robert M. Morgenthau as United States Attorney for the Southern District of New York.
In 1969, Richard Nixon had put pressure on Morgenthau to resign. Morgenthau refused to go gently. He had the support of Nelson Rockefeller, John Lindsay and Jacob Javits. He held out for nearly a year.
In practice, if a president is not willing to accept high political cost, a district attorney might hold out for a while.
In 1832, in a speech to the Senate, William Learned Marcy of New York declared, “to the victor belong the spoils of the enemy”. He was not speaking of war. He was speaking in support of partisan control of the civil service.
Marcy was speaking against the fastidious, and for boldness of speech. That is to say, he was also speaking in support of Peggy O’Neil.
It may be, sir, that the politicians of the United States are not so fastidious as some gentlemen are, as to disclosing the principles on which they act. They boldly preach what they practise. When they are contending for victory, they avow their intention of enjoying the fruits of it. If they are defeated, they expect to retire from office. If they are successful, they claim, as a matter of right, the advantages of success. They see nothing wrong in the rule, that to the victor belong the spoils of the enemy.
Debates in Congress
Margaret O’Neil was the daughter of the owner of a boarding house and bar, near what was called the Presidential Mansion. In 1831, she married John Eaton, soon to be Andrew Jackson’s Secretary of War.
Disapproval of the marriage developed into a scandal, with Jackson firing nearly the whole of his cabinet for being so disapproving.
What Marcy specifically meant, by to the victor go the spoils, what he was speaking about at the time, was that if Andrew Jackson wanted to make Martin van Buren Minister to England, to politically rehabilitate van Buren after he stood up for Peggy O’Neil, Jackson could, because he had won the election and it was his right.
The Senate disagreed. Invoking the advice and consent clause of the constitution, and some moralism, the Senate brought van Buren back from England.
In a system with a balance of powers, who the spoils go to can be a matter of debate.
In July 1881, Charles Guiteau assassinated James A. Garfield. Guiteau was a disappointed job seeker in the political spoils system.
This was an important event in the origins of the Progressive movement.
Presidents would be isolated and protected from the task of handing out jobs. Civil service hiring would done using modern ideas about scientific efficiency in management. Political patronage and machine politics would be given up on. Progressivism would mean, that the way Abraham Lincoln and others had handed out patronage jobs, would be a thing of the past. Support of more modern political results, and support of more modern political methods, were related values.
During the Progressive Era, regulatory agencies at both the state and federal level took over the social control of competition, anti-trust policy, railroad pricing, food and drug safety, and many other areas. At the same time, U.S. politics experienced other important changes, such as reform of the civil service, use of voter referendums decide local issues, direct election of senators, recall of judges, and the growth of government generally.
The Rise of the Regulatory State, Edward L. Glaeser and Andrei Shleifer
Alexis de Toqueville, in the century before, had observed an American pragmatism; few artists, poets, or writers; and not much presence of a federal government beyond the post office.
But when Calvin Coolidge resisted pragmatic ideas about government intervention in economic crisis, it was hardly from a lack of ideology. It was a rigid holding to principles of small government. Talk of taxes being despotic exactions, which would destroy individual initiative, and thus the national prosperity, is not an unideological style.
It is not very good for the national prosperity, either.
The Democratic Party platform of 1932, enacted at a time of unprecedented economic and social distress, declared that the only hope for improving conditions, restoring employment, and affording permanent relief to the people rested in a drastic change in economic governmental policies.
In a drastic change, interaction between ordinary Americans and the federal government would extend to far more that visiting the post office, or seeing the occasional soldier or sailor.
The New Deal had a light tint of the revolutionary one party state. The government would hire an army of workers, the workers would naturally then vote for the party, and a clearly ideological movement with broad reach would lead the nation out of crisis.
The relation of this movement to the older American system of political patronage and spoils, is a bit complex.
The first year of the Roosevelt administration was marked by an increase in the number of federal employees unprecedented since the period of the World War. Most of the thousands of positions in the agencies created to carry out the New Deal were filled without regard to the civil service laws, giving rise to repeated assertions that they were being distributed on a spoils basis. In contrast to such criticism was the unusual attention given by the administration during the last six months to matters of political reform, notably an effort to bring about a separation of party and governmental affairs. The disposition of the President and other administration leaders to undertake a political housecleaning in the dominant party met a sympathetic response from individual members of Congress, while the Senate as a whole made several gestures of approval during the recent session. The House of Representatives, on the other hand, gave no similar support, and the Senate itself adopted the customary political viewpoint so far as patronage was concerned.
Political Reform and Federal Patronage, CQ Press
The reach of the federal government extended to such things as how to put on a play, or how to paint a picture, or what crops to plant.
This was something of a turning from Progressive ideas about government efficiency and merit. A farmer might be encouraged to not plant crops, and compensated, for the greater good.
A worker might be given a shovel, rather than large machinery, to employ greater numbers of people.
A play should have a large cast and crew. This is for employment too. A playwright should take this into account in their artistic vision.
And the abstract expressionist painter Arshile Gorky was told that he should put realist airplanes in his mural at Floyd Bennett Field in Brooklyn. There is some ambiguous irony in Americans telling this to a painter who had taken on the name of a Soviet socialist realist writer.
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We will see ourselves as political heirs of the New Deal. Or we will say, some of us, that its mild leftism was intended to ward off or co-opt the stronger sort. We might see, in a photo of a skit, densely packing elements of its ideology, some exclusionary ideas expressed.
Ideas about presidential control of government, versus a civil service independence, ebb and flow.
Since the New Deal, a large degree of government involvement in the economy has remained, though with some important loses. But since then, we have not really seen anything like a government-backed popular movement, with such a broad and interwoven ideology that it had firm opinions about art.
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Elena Kagan’s Harvard Law Review article “Presidential Administration” presents a thesis of the traditional view of separation of powers and the executive agencies. Congress vests decision-making authority in the heads of the departments and agencies that it creates by law. The authority is sometimes broad, and sometimes more narrowly constrained. But agency heads have an independence.
And as antithesis, written before the abuses of the Bush administration, the unitary theory of the executive, where a president has plenary power. For present purposes, the important justification for this view is in the removal power of a president. If a president wants something done, they could just, Richard Nixon style, fire officials until one did their bidding. Therefore, Presidents control policy, and the agencies have no real independence.
Kagan makes a synthesis of this. Presidents, conservative and liberal alike, want control of policy. Traditional-view liberals will fear that presidential control of agencies really just means conservative Presidents intentionally destroying them. That “presidential supervision of administration inherently cuts in a deregulatory direction.” Kagan cites Bill Clinton as an example that close presidential direction of the agencies is not necessarily associated with wrecking them. Presidents get their policy control over agencies not from the removal power, but from the ability to send them directive memos, and from the ability to promote the work of regulatory agencies as coming from the President.
At the front end of the regulatory process, Clinton regularly issued formal directives to the heads of executive agencies to set the terms of administrative action and prevent deviation from his proposed course. And at the back end of the process (which could not but affect prior stages as well), Clinton personally appropriated significant regulatory action through communicative strategies that presented regulations and other agency work product, to both the public and other governmental actors, as his own, in a way new to the annals of administrative process.
Presidential Administration, Elena Kagan, Harvard Law Review
I’ve argued that the New Deal was in ways not Progressive. This was in a technical sense, of having some differences from the Progressive movement of the late 19th and early 20th centuries. How Franklin differed from Theodore Roosevelt. The Progressive movement saw progressive goals coming from progressive means. Here, if the goal produced is progressive, then the means are:
As a matter of policy, moreover, Kagan writes that she sees presidential supervision of federal agencies "as a mechanism to achieve progressive goals" in areas such as environmental protection. She believes that presidential supervision can "jolt into action bureaucrats suffering from bureaucratic inertia in the face of unmet needs and challenges." She believes that it is important to render the bureaucratic sphere "more transparent and responsive to the public, while also better promoting important kinds of regulatory competence and dynamism." This is a view of presidential power that traces its lineage to Theodore Roosevelt and FDR.
Elena Kagan Is a Progressive on Executive Power, Walter Dellinger, Slate
On December 7, 2006, Mike Battle, Director of the Executive Office for United States Attorneys, informed seven United States Attorneys that they were being dismissed. This was halfway through the second term of George W. Bush. A revision to the Patriot Act earlier that year had given the Attorney General effective power to replace United States Attorneys avoiding Senate confirmation.
At a level below Gonzales, the discussion of removal had been highly politicized. In April 2007 testimony before the Senate Judiciary Committee, Gonzales had a continual inability to recall events, to a degree that was not credible.
By September 2007, Gonzales and eight other Justice Department officials had resigned their position.
The constitution is silent on the removal power. Convention has arisen for Senate-confirmed positions, that removal for partisan cause is acceptable at the beginning of an administration. Partisan hiring is considered acceptable at any time, even for positions serving justice. But partisan removal in the middle of administration, which calls attention to the partisan nature by being out of step, can have high political cost.
I am partial to the traditional view of presidential control of the agencies.
The actions of a civil servant should change in response to new laws; to new court decisions; to the promulgation of new regulations, and to advances in scientific knowledge. The actions of a career civil servant should not have to wildly flex every time someone new is elected president.
I think I have been pretty much indoctrinated in this view, by an upper midwestern school system teaching ideas of good government. There is deep old progressive ideology here, about educating people for citizenship.
Whatever political differences I might have with others, we should all share ideas about competence in government at the least.
A portion of the scandal in Donald Trump firing 46 politically-appointed officials at the Department of Justice, is that we still use in the 21st century, a hiring method that should have been abandoned in the 19th. District Attorneys should not have their political party be a major qualification for the job. Ambassadorships should not be purchased by collecting campaign funds.
There are complexities to wrestle with here. Congress is no more trustworthy than presidents in telling the agencies what to do. Having appointments extend across administration boundaries would only raise the partisan stakes.
In episode 7 of Celebrity Apprentice 4, Donald Trump had fired Gary Busey for poor performance at the Steakhouse.
It’s the damnedest fucking thing, but I think this event can be reasonably put in a history of the removal power of the president of the United States. It is a part of how we get Donald Trump as president, then able to fire 46 United States attorneys. The ideal that whatever political differences we might have with others, we all value competence, has clearly been tossed out the window.