March 21, 2007 | National Review Online

The Inter-Branch Clash Over Fired U.S. Attorneys

From the very start, the Bush administration’s self-induced debacle over fired United States attorneys has blurred law and politics. Now, the blur has officially grown into the fog of inter-branch war.

The House and Senate Judiciary Committees have threatened to subpoena two of President Bush’s top aides, senior adviser Karl Rove and former White House counsel Harriet Miers. According to already disclosed e-mail traffic, both were involved in discussions that eventually led to the removal of eight top federal prosecutors.

Such threats from Congress are politically tactical but legally dubious. They flout our bedrock separation-of-powers doctrine, under which the two political branches are peers — neither the other’s master, and thus neither in a position to command the other’s unqualified cooperation.

Weighing the law and the politics, the president and his able new counsel, Fred Fielding, offered a compromise. Members of the president’s executive staff would be made available for private interviews just as President Bush and Vice President Cheney (as well as President Clinton and Vice President Gore) agreed back in 2004 to make themselves accessible to the congressionally chartered 9/11 Commission. Congress would not be permitted to place the president’s advisers under oath and there would be no stenographic transcript.

The committees would, of course, continue to be able to compel sworn testimony and other information from top executive officials at the Justice Department, over which Congress has funding and oversight authority. The administration, however, would not surrender internal communications between members of the president’s own staff.

Again, law collides with politics.

From a legal and policy perspective, the White House position is unassailable. Quite apart from what it may want, and what may be politically expedient for the administration to give, Congress is entitled to nothing from the president’s staff. Its demand is no more appropriate than would be a summons from President Bush to Judiciary Chairman Patrick Leahy’s staffers to press them on whether Leahy’s blocking of highly qualified judicial nominees stemmed from principle or bare-knuckles partisanship. We want our president and our legislators to get good, creative, uninhibited advice from their counselors — the kind of advice you don’t get if your aides must assume they will someday be grilled in public by political adversaries.

Furthermore, placing someone under oath connotes subservience — the way, for example, any citizen owes truthful testimony once he is sworn in the public’s courts before a grand or petit jury. Our political branches, to the contrary, are equals. The mere issuance of a subpoena does not alter that relationship, rendering the president subservient to congress.

Similarly, a transcript among equals is not a quest for the truth. It’s a set-up. It can’t help but induce stinginess and parsing from the witness who well knows the interrogator is simply gathering ammunition for later use. If equals truly want a mutual understanding, they can get that by talking informally. Do you suppose Senator Leahy would want all his conversations with administration officials transcribed? You know, to promote the public interest in an accurate record?

But there was the senator Tuesday, intoning, “I don’t accept [the president’s] offer[.] … It is not constructive, and it is not helpful to be telling the Senate how to do our investigation or to prejudge its outcome.” No surprise here. As sound as the president’s legal position is, the politics strongly favor congressional Democrats. Dissembling is how the administration bungled into its current straits. Now, its political opponents argue, it wants to compound that by insulating top advisers from sworn testimony and an accurate record of what they say.

Like it or not, this rhetoric is bound to resonate with the public. The vast majority of Americans are not constitutional law scholars. When they hear such things on top of the Justice Department’s performance to date, they’re not apt to say, “But what about separation-of-powers?” They’re instead going to wonder whether the administration has something to hide.

Come clean about the politics, though, and the law will make more sense. We are not, after all, dealing with a crime when U.S. attorneys are dismissed — at least as long as it was not done to obstruct investigations, which is highly unlikely. (Day-to-day investigations are conducted by career prosecutors, not the district U.S. attorney; cases routinely continue when there is a change in U.S. attorneys; and, to date, there is no credible suggestion, despite the reams of email, that these dismissals targeted individual cases rather than individual prosecutors.)

No, “our investigation” that Senator Leahy is referring to is about politics, not legal impropriety. It is about exploiting to the maximum degree the administration’s missteps. Congress is within its rights to do that, but the president could undercut its force by (a) acknowledging that his administration was engaged in an inherently political exercise; (b) either putting out chapter-and-verse to justify the claim that some of those dismissed were subpar performers or, in the alternative, apologizing to those who were maligned and firing anyone who knowingly maligned them; and (c) committing that he has no strategy to use his interim-appointment authority to circumvent the Senate’s constitutional prerogative to confirm executive branch officers.

If the president did those things, it would be easier to make his legal and political case. First, if congress were a trial court probing a terrorist attack (a matter of far greater significance than the dismissal of U.S. attorneys), no subpoena it issued could force wives to testify against husbands, lawyers against clients, priests against penitents, or a defendant against himself. People fully understand that there are many privileges society honors as too important to disturb, no matter how crucial an investigation may be. Every American — Republican or Democrat — has an interest in government operating efficiently, and that means presidents, just like members of congress and judges, must have the privilege of inviolable confidentiality with their staffers.

That’s easier to accept if the president has already copped to politics in what, quintessentially, is an “investigation” of politics. It would also pave the way for the president to make the other salient point: The last people on the planet who want the politics removed from United States attorney appointments are United States senators.

The Constitution says senators merely get to consent (or not) to U.S. attorneys chosen unilaterally by the president. But that’s not our real arrangement. The way the game gets played is a function of politics, not law. Every single senator now feigning horror over the purportedly sudden politicization of the Justice Department knows that only too well.

In our real arrangement, a president doesn’t just put his own person in; he horse-trades with the senate. If he tries to appoint without consulting — as our law fully permits — he gets stopped cold. By politics. Under the upper chamber’s arcane rules, a single senator can prevent a nominee for U.S. attorney (or a judgeship, or any other executive branch office) from having his confirmation voted on. Home state senators have long been able to “blue-slip” nominees for executive posts in their districts — effectively, a veto over the president’s choice. A president wouldn’t dare try to force a new U.S. attorney into Vermont without consulting Senator Leahy, into New York without consulting Senator Charles Schumer, or into the domain of any senator now caviling about politics without giving said senator the opportunity to play politics. Any president who tried would be guaranteeing defeat of the nomination — defeat based exclusively on good old, hard-core, power-politics, and completely irrespective of the nominee’s worthiness.

This controversy won’t go away until the administration concedes that politics is political. Until then, the legal underbrush will obscure the political hypocrisy, and the administration will dig itself ever deeper.

— Andrew C. McCarthy directs the Center for Law & Counterterrorism at the Foundation for Defense of Democracies.