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THE PHONY FIRING NON-SCANDAL |
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Written by Jim Warner
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Friday, 30 March 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. The Democrat Congress either it does not know or does not
care about the limitations which the Constitution places on its powers.
James H. Warner recently retired as an attorney in the
Office of General Counsel at the National Rifle Association. He served as
a domestic policy advisor during President Reagan's second term, where he was
responsible for ending the 55 m.p.h. national speed limit. He represented in
the U.S. Supreme Court, one of the Sheriffs who successfully challenged the
Brady Law, and is the author of two law review articles on constitutional
issues.
Serving as a Marine aviator in Vietnam, his aircraft was
shot down over North Vietnam. His Communist captors held him in the
"Hanoi Hilton" and other prisoner-of-war torture camps for 5½
years.
He is the author of the To The Point article Take It To
Court: The Enumerated Powers Solution
For Limited Government
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