I figured I’d look around the blogosphere’s right wing today to see what those folks are saying about fire-the-lawyers-gate. I can’t seem to get volokh to load (which could well be my not-so-great connection talking) [March 14 update: Go to http://volokh.powerblogs.com; also, Orin Kerr has a post up on the issue from yesterda–see Update 2, below] . Redstate.com has a post up by a “Mark I” entitled Show Me The Scandal. [March 14 update: Mark I has another post from this afternoon.] Not much up at the Corner (nothing that I can find since AG Gonzales’s presser started at 2pm). [March 14 update: Lots of discussion there now, which I think was touched off by a call by Jonah Goldberg (who for years I liked to call the “other” Jonah G living in Adams Morgan, though we never managed to meet for tea when I lived there) for AG AG’s resignation.] Ditto for Instapundit. [March 14 update: Actually, Glenn Reynolds posted on this back on March 8, which I missed–he linked to a post calling for the AG to be fired. Also on that site, this morning, were Ann Althouse criticizing the NYT’s characterization of “mistakes were made” as a “mea culpa” and a Tom Maguire mention as well.]
I’ll be naive and say I’m a bit surprised. After all, firing seven staffers at the WH travel office caused a bit of a several-years-long stir not that long ago. I recall a lot of people’s having been very upset at the idea of personnel politicization back then.
Don’t get me wrong. As far as I know, those folks who got fired were better even than the Orbot. But in the great scheme of things, don’t you think canning 8 USAs for apparently partisan purposes and then misleading (if not lying to) Congress afterward is a bit of a deal?
Don’t get me wrong again: I don’t know much about Travelgate, and I’m no fan of Hillary Clinton’s (I hope very much not to have to vote for her in 2008). But I thought these issues–firing the staff, lying about it afterward–really, really, really bothered folks on the right.
I really will have to update my priors, I guess.
Update
Elliot raises an interesting point in the comments below:
US attorneys are political appointees, appointed for political reasons. Why are folks having an attack of the vapors because they are also dismissed for political reasons? As I recall, Clinton canned all of them for political reasons. Bush only canned seven. Perhaps someone can provide a brief outline of a better system?
Good question. Let me try and answer it. Clinton’s demand for the resignation of all 93 USAs was not atypical of the sort of housecleaning that happens after a change in power. And I didn’t mean to suggest that the USA jobs are somehow totally unrelated to politics. Any Senate-confirmed position has an inherent political element (as in “the political branches”).
That’s not the issue here.
As I understand it, the issue here is that, once a president has picked a USA, the USA is by convention supposed to have the prerogative to serve out the president’s entire term. The point of this convention is to avoid precisely the sort of on-leaning in which various Republicans–via the WH and Washington DOJ–have engaged.
So the point is not that the USA position is apolitical, but rather that what politics does come up in the course of a term does not come from above.
Back to Clinton’s decision to replace all the USAs. To my knowledge, that decision was not coupled with interference in, or retribution for, the day-to-day decisions the USAs made once in office. If you’re interested in reading more about the distinction between what Clinton did and what Bush and his crew have done, check out this post regarding what former Clinton chief of staff John Podesta (and former Southern District of NY USA Mary Jo White, while we’re at it) have said on the issue.
One last point in response to Elliot’s comment. As with my buddy Scooter Libby, I have to wonder why, at a minimum–even if a person sees nothing wrong with the “underlying” acts here–we shouldn’t be upset by the apparent misleading, and possibly lying, about it by administration officials. Particularly when that behavior involves sworn congressional testimony. Is it quaint to be bothered by that sort of thing? And, is it naive to ask why various administration folks and at least a couple of MOCs seem to have felt the need to mischaracterize (at best) or lie (at worst) about their actions in all this? If this is standard fare, why not just say so?
Update 2: Thanks to CL for providing a link to Orin Kerr’s post at volokh on the topic of fired-lawyers-gate. I’m a big fan of Kerr’s blogging, and he does make a couple useful points. (Though I have to admit that I am underwhelmed by what one might call the un hominem defense–“I know some of those guys, and they’re good guys, so I doubt they did anything wrong.” Kerr doesn’t give names, so I can’t tell to whom he’s referring. But in at least some cases the documentary evidence is pretty bad.)
Posted by Jonah Gelbach on March 13, 2007 at 04:06 PM
Comments
The rules by which authoritarians play don’t have anything to do with symmetry or “fairness” but only whether or not they win. The “mistakes were made” Alberto mentions were only that he got caught and didn’t more effectively silence the USAs. John Dean covers it well in his book “Conservatives Without Conscience”. Find a more researched but still easy read on the mindset at Altemeyer’s “The Authoritarians”. The DOJ has been put to work obstructing justice. The mistake is it wasn’t effective enough.
Posted by: chris miller | Mar 14, 2007 10:25:23 PM
The best guy on this issue from the start has been Josh Marshall of Talkingpointsmemo.com. Here, http://www.talkingpointsmemo.com/archives/012993.php , he breaks down why the comparison with Clinton is nutty:
But let’s address why this is nothing but a smokescreen to hide the criminal conduct at the Justice Department.
First, we now know — or at least the White House is trying to tell us — that they considered firing all the US Attorneys at the beginning of Bush’s second term. That would have been unprecedented but not an abuse of power in itself. The issue here is why these US Attorneys were fired and the fact that the White House intended to replace them with US Attorneys not confirmed by the senate. We now have abundant evidence that they were fired for not sufficiently politicizing their offices, for not indicting enough Democrats on bogus charges or for too aggressively going after Republicans. (Remember, Carol Lam is still the big story here.) We also now know that the top leadership of the Justice Department lied both to the public and to Congress about why the firing took place. As an added bonus we know the whole plan was hatched at the White House with the direct involvement of the president.
And Clinton? Every new president appoints new US Attorneys. That always happens. Always. In early 1993, since the Republicans had held the White House for 12 years a few US Attorneys signalled that they might not be tendering their resignations and the new Clinton Justice Department asked for and received the resignations of all 93 US Attorneys. Eager to whip up scandal, Republicans at the time tried to make this into something untoward. Claiming this is a big deal is like grandstanding with the claim that President Bush ‘fired’ Clinton’s cabinet secretaries when he came into office in 2001. At worst, it’s the difference between giving them all several weeks to resign and just asking for their resignations on day one.
The whole thing is silly. But a lot of reporters on the news are already falling for it. The issue here is why these US Attorneys were fired — a) because they weren’t pursuing a GOP agenda of indicting Democrats, that’s a miscarriage of justice, and b) because they lied to Congress about why it happened.
Posted by: Bart Motes | Mar 14, 2007 10:42:48 AM
The “defense” that the attorneys were political appointees, appointed for political reasons, and therefore can be fired for political reasons as well, is, well, no defense.
Because, see, the president is a political appointee. Criticizing him for political reasons is exactly what we *should* do.
Posted by: Patrick | Mar 14, 2007 10:16:38 AM
Orin
Thanks for the clarification. My apologies if I made it sound as if I was certain that you were defending the folks involved rather than just making a general point–I definitely didn’t mean to misinterpret you!
j
Posted by: jonah gelbach | Mar 14, 2007 8:02:54 AM
The salient point of all of this, to my mind, is that the USA PATRIOT Act gave the Executive Branch the new power to appoint successors to U.S. Attorneys without the bother of Senate approval and confirmation. Once that extraordinary power was conferred, of course, it was inevitable that it would take steps to exercise it.
Posted by: yclipse | Mar 14, 2007 7:30:19 AM
Sorry the VC has been down; I’ll check into it.
Jonah, your being underwhelmed by my comment to the effect that “they’re good guys” may be due to your misinterpreting my comment as a defense. To be clear, I was just giving reasons why I don’t have a solid feel yet for how big a scandal this is, which is in turn the reason why I haven’t blogged about it. Thus the post wasn’t intended to persuade, but rather to “dump out” my personal thoughts on the matter in case anyone cared (which at least CrazyTrain apparently did).
Posted by: Orin Kerr | Mar 14, 2007 1:12:37 AM
Sorry the VC has been down; I’ll check into it.
Jonah, your being underwhelmed by my comment to the effect that “they’re good guys” may be due to your misinterpreting my comment as a defense. To be clear, I was just giving reasons why I don’t have a solid feel yet for how big a scandal this is, which is in turn the reason why I haven’t blogged about it. Thus the post wasn’t intended to persuade, but rather to “dump out” my personal thoughts on the matter in case anyone cared (which at least CrazyTrain apparently did).
Posted by: Orin Kerr | Mar 14, 2007 1:12:36 AM
Elliot writes:
I would be interested in knowing if any ongoing cases or investigations were comprmised by a change in management.
See “Lam, Carol”, under subheadings “Cunningham, Randy ‘Duke'”, “Foggo, Kyle ‘Dusty'”, and “Wilkes, Brent R.”.
Posted by: jonah gelbach | Mar 14, 2007 12:15:32 AM
Thomas
Thanks for your comment. I hadn’t seen the rest of White’s statement, and I definitely think that adds some perspective to this issue.
For what it’s worth, I don’t mean to defend President Clinton, on this or any other matter, for its own sake. I did have the impression that the Clinton-did-it-too charge lacked merit, and the quotation you provide from White moves my prior on that issue, at least in terms of the procedural appropriateness of what Clinton did.
As for the substance of the travel office: I don’t know the details of who in the WH serves at the pleasure of the president and who has civil service protection (I’m not sure the issue of career-versus-political staffer is dispositive here–is the president forbidden from replacing, say, the WH chef?).
But that’s really not my point. My point is partly the hypocrisy on the GOP side here concerning the underlying issue. I think the Clintons did lots of sleazy and lots of ultrapolitical things when Bill was president. I also think that the GOP obsession with investigating the WH was, to say the least, overboard. And the ways in which January 20, 2001, brought an end to such “oversight” are hard not to notice.
And the other part of my point is the new tolerance that the erstwhile Rule of Law crowd has developed for lying, under oath and otherwise.
Posted by: jonah gelbach | Mar 14, 2007 12:14:21 AM
I agree the convention is that US attorneys serve out the president’s term or leave at their own discretion. However, we might say both the USA and convention serve at the president’s pleasure. If he wants to break that convention, our system is set up so he can. Our system is also set up to formalize convention and substitute it with law. To date, we have not chosen to do that. Bush chose to junk the convention for seven USAs.
It’s not at all quaint to be bothered by lies. But that is a separate issue from canning the USAs.
The convention also includes allowing a USA to finish cases that are in progress or investigations he has initiated. Clinton’s canning of every USA violated that convention. But that was Clinton’s choice. He junked the convention there. Convention is an evolving thing. He was well within his rights to do that even if some USAs were deeply enmeshed in ongoing cases. They are and were political appointees, and sit at the pleasure of the sitting president.
I would be interested in knowing if any ongoing cases or investigations were comprmised by a change in management. If so, the president was well within his rights in dismissing the USAs, but the wisdom of the decision could well be questioned.
Posted by: Elliot | Mar 13, 2007 10:51:10 PM
Are you saying you were upset by the travel office firings, or that others were? I mean, if we assume that the cases are somehow similar, there’s plenty of partisan hypocrisy to go around, right?
Of course, there are some differences in the cases. The Bush administration seems to have wrongly suggested that the fired USAs hadn’t performed well. But, then again, at least they didn’t prosecute the people they fired for political reasons. And there’s no evidence to suggest that the Bush administration has run FBI background checks on the fired individuals months after firing them. Or, for that matter, on members of the former administration. And of course those fired from the travel office weren’t political appointees, but career employees.
Clinton’s firing of all USAs absolutely was not typical. It isn’t uncommon for most or all of the USAs to be replaced over time; en masse firings, on the other hand, had never been attempted. (Mary Jo White’s statement on the matter is quite direct: “In this and most previous Administrations, the United States Attorneys appointed by the prior Administration were replaced in an orderly and respectful fashion over several months after the election to allow for a smooth transition. If wholesale change in the United States Attorneys is to occur, it should be done in this way. In my view, wholesale replacement of the United States Attorneys should not be done immediately following an election, as occurred at the outset of the Clinton Administration-such abrupt change is not necessary and can undermine the important work of the United States Attorneys’ Offices.”)
Posted by: Thomas | Mar 13, 2007 10:35:50 PM
volokh.powerblogs.com
Posted by: John M. Robinson | Mar 13, 2007 8:47:26 PM
Volokh has been down for me intermittenly. Just loaded ok, though.
Posted by: Bart Motes | Mar 13, 2007 8:36:18 PM
I also have been unable to get Volokh for the past several days. If three of us are having the same problem, we can probably just wait until they get it sorted out.
Posted by: Elliot | Mar 13, 2007 7:34:14 PM
US attorneys are political appointees, appointed for political reasons. Why are folks having an attack of the vapors because they are also dismissed for political reasons? As I recall, Clinton canned all of them for political reasons. Bush only canned seven. Perhaps someone can provide a brief outline of a better system?
Posted by: Elliot | Mar 13, 2007 6:31:52 PM
BTW: I haven’t been able to access Volokh for several days now either, so perhaps the problem is with their site.
Posted by: Patrick S. O’Donnell | Mar 13, 2007 5:34:45 PM
Orin Kerr wrote a post at Volokh about why they haven’t been talking about it.
http://volokh.com/posts/1173809592.shtml
Posted by: CL | Mar 13, 2007 4:33:08 PM