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March 22, 2007
Who Can Fire a U.S. Attorney?
The issue, as I see it, is not whether a President has the authority to fire an inferior federal officer, which is exactly what a U.S. Attorney is. See, e.g., United States v. Hilario, 218 F.3d 19, 24-26 (1st Cir. 2000).
The issue on the table is whether, consonant with the president's duty to "take care that the laws be faithfully executed . . . [,]" Art. II, Sec. 3, a president may remove a federal official for the purpose of preventing the criminal laws of the United States from being applied even-handedly. For example, if a U.S. Attorney has investigated complaints of voter fraud but concluded that no crime occurred, may the president remove the U.S. Attorney for declining to bring charges -- by way of complaint, as only a grand jury can return an indictment under the Fifth Amendment -- or initiating and then publicizing an investigation solely for the purpose of securing a political advantage in an election.
Our current president made no secret in the 2006 election that he considers himself a Republican operative first and foremost, as evidenced by his inference that Democrats are traitors, and only president of the United States second. So I believe it is not only fair to ask but, given the House's constitutional authority to investigate executive compliance with the laws under Art. I, Sec. 2, cl. 5 , the duty of Congress to inquire into this president's behavior vis-a-vis U.S. Attorneys.
If Bush, or any executive official, intended to punish U.S. Attorneys for refusing to abuse their law-enforcement powers, then the American people have the right to know. And the House has a constitutional responsibility to decide what should be done with such a person.
By the way, the rule of law concerning the firing of U.S. Attorneys is set forth in 28 U.S.C. § 541, which states:
(a) The President shall appoint, by and with the advice and consent of the Senate, a United States attorney for each judicial district.(b) Each United States attorney shall be appointed for a term of four years. On the expiration of his term, a United States attorney shall continue to perform the duties of his office until his successor is appointed and qualifies.
(c) Each United States attorney is subject to removal by the President.
Update: To be clear, the president has the authority to remove a U.S. Attorney -- per § 541 and Myers v. United States, 272 U.S. 52 (1926) -- discussed here by Marty Lederman at Balkinization. Regardless, the fact a president has such authority does not insulate him from the political and legal consequences of such a decision -- as Andrew Johnson and Richard Nixon both learned.
Posted by shertaugh at March 22, 2007 11:03 AM
Comments
Interesting points. I'll chime in here and point out that Section 541(c) explicitly says that the President can remove a U.S. attorney. Honestly, does it really matter why the President removes someone?
Yes, I realize this comment may seem ignorant. But it's part of the Executive's job to decide who serves under him. If people don't like what the Executive does, we have elections (and even impeachment) to solve that.
Posted by: Andrew Flusche at March 22, 2007 12:25 PM
Yes, it matters why the President removes someone. For example, give me $100,000 or you're fired" would be illegal. "Have sex with me or you're fired" would be illegal. "Bring false charges against my enemy or you're fired" would be illegal. "Don't prosecute my friend Duke even though he's committed serious crimes or else you're fired" would be illegal.
Posted by: Mojo at March 22, 2007 7:51 PM