Gonzales and the law

Today Kmiec and Litman discuss the legal angles around the firing of U.S. attorneys. Previously they debated the politics and constitutional issues of a Senate no-confidence vote and the attorney general’s uncertain future.

The law is bigger than any president
By Harry Litman

Doug,

Your response to the Iglesias case may give us some basis for common ground. You analyze the case according to whether Sen. Pete Domenici (R-New Mexico) might have violated Senate ethics rules, which you rightly point out should not form a basis for removal of the attorney general. But the question of the propriety of Domenici’s conduct is critically different from the question of the propriety of the attorney general’s conduct, even assuming they acted for the same reasons (or, as seems to be the case, even if the attorney general simply deferred to the senator’s reasons). You nowhere address what struck me as the particular dereliction of the attorney general in the matter, which is the failure even to attempt to determine whether Iglesias’s rebuff of the senator’s push for a prosecution was right on the merits. You agree with me, and indeed refer to it as a “sacred principle,” that prosecutorial decisions must be based on the facts and the law and nothing more. Doesn’t that suggest that if under the facts and the law, the prosecution that Domenici was pushing for was unwarranted (and I note that Iglesias is gone but the case still has not been prosecuted), that it was a betrayal of the “sacred principle” to fire Iglesias for not bringing it? Yet as far as we know, the attorney general was indifferent to that consideration, and nobody at the Department ever even looked into it.

Note, however, that we don’t apply the same “sacred principle” to the conduct of the senator, or at least to nowhere near the same extent. So if in fact Iglesias was fired because he declined to allow his office to be exploited for partisan political purposes, I think it might reflect poorly on Domenici, but it would be a far more serious transgression on Gonzales’ part. It seems to me that for a senator to try to exploit the prosecutorial process for partisan political ends is unseemly, but for an attorney general to acquiesce in his doing so is far worse. That is because it is the attorney general’s particular responsibility to ensure that partisan politics play no role in prosecutorial decision-making. Would you agree with me thus far?

I think we hold to a similar distinction between the White House and the Department of Justice. Consider the case of Bud Cummins in the Eastern District of Arkansas, who appears to have been pushed aside to make room for a political favorite of the White House. Based on our discussion to date, I take it you would point out that nothing in the Constitution precludes such a use of the appointments power, and I wouldn’t disagree. And yet the attorney general was “extremely upset” when he learned, while on a trip in South America, that his deputy testified to essentially that version of events. It’s not hard to see why. Kyle Sampson reportedly told the Judiciary Committee that Mr. Gonzales was angry because the testimony had put the role of the White House “in the public sphere.” Assuming that is accurate (and it rings true, don’t you think), what does it tell us?

What I think both these cases tell us is that it is not enough, in appraising the conduct of the attorney feneral, to invoke the point (which seems to me the cornerstone of your defense) that the President may remove United States attorneys for any reason or no reason. I don’t dispute the observation, but I think it fails to take account of the differences in institutional roles of the White House and the Department of Justice. (That is so, incidentally, whatever one’s view of the principle of the unitary executive.) You invoke Justice Robert Jackson, and there is no better model to look to in assessing the role of the attorney general. As Jackson’s words and actions in office illustrate, I think we commonly measure the greatness—or in this case the bare sufficiency—of attorneys general in large part by their ability to say no, even if a legal justification might be constructed for saying yes.

None of this, by the way, has anything to do with the equally uncontroversial point that a United States attorney can’t ignore the prosecutorial priorities of the administration, which you emphasize. No one contends otherwise. Some critics have alleged that the department has used recalcitrance to follow administration priorities as a pretext for some of the firings, but nobody suggests that it is not a valid justification.

You write that “it is Orwellian to suggest that the fulfillment and defense of a constitutional duty could be the basis of removal of the attorney general.” The constitutional duty you invoke is the protection of the president’s “unfettered removal authority.” That authority is well worth protecting, I agree, but it is not really under siege here. What is rather threatened is the institutional values of integrity and nonpartisanship in the execution of the law, values that the Attorney General is particularly charged with safeguarding. We, along with many commentators on this sorry episode, have both invoked the notion of the “rule of law.” What we mean by that phrase could be the subject of another exchange, but in this context, doesn’t it have to signify, at a minimum, that the attorney general’s sole charge can’t be to serve the political fortunes of the president? The sonorous phrase “rule of law” turns out to be pretty hollow if the law that is ruling is nothing more than the plenary power of the president to dismiss or hire for any or no reason.

I’ve enjoyed our exchange.

Harry Litman is a former United States attorney and deputy assistant attorney general. He currently practices law and teaches at Rutgers University School of Law and Princeton University.

Keep the separation of powers, even when it’s inconvenient
By Douglas W. Kmiec

Harry,

Would the attorney general matter still be important if no laws were broken? It is very important, and on this we agree, though perhaps for different reasons.

First, you give emphasis to something with which I could not possibly take issue. Were the Department of Justice to be understood as merely a mouthpiece for either the Republicans in Congress or for the White House, the department, and our nation, would have suffered a grievous wound. I share your supposition, but do not know first-hand, that some of the less experienced staff people relied upon by the attorney general to evaluate U.S. attorneys had an inadequate appreciation for this point of importance. They seemed far more zealous in the pursuit of alignment with the president’s policies, and identifying “loyal Bushies,” than with understanding that on occasion the most important manifestation of loyalty to a president is telling him that he can’t do something. The reason is of course apparent: In making a soundly reasoned objection premised upon law, an objection might be perceived as politically annoying, but it is constitutionally essential to “take care that the laws are faithfully executed,” which is the highest obligation of the president under the Constitution after providing for the common defense.

The ability to say “no” even to a desirable policy when the law does not support undertaking it is a core aspect of the rule of law. But I think you would agree with me that there are abundant areas in constitutional and statutory interpretation that present issues of great subtlety, rather than certainty. In this regard, a lawyer serving the president must be careful not simply to indulge either a tendency to err against presidential action on the supposition that the least unobjectionable course is the best one, or to indulge creative legal argument that delivers the president’s objective, but only by stretching legal principle into an unrecognizable form. Some would say that Mr. Comey’s unwillingness to re-certify the president’s military intelligence capability falls into the former case, while John Yoo‘s strict interpretation of the international and domestic laws against torture falls into the latter. To me, both questions are more difficult than partisans on either side often admit. And therein lies the problem with the targeting of Alberto Gonzales. Asking if no laws were “broken” often accepts a pretense that these questions are without difficulty and that the meaning of the law jumps from the page to give an unequivocally clear answer, either supporting or limiting the president. It doesn’t of course, yet the nation’s well-being demands an answer even for the most complex and subtle questions.

You and I both admire the attorney general and Supreme Court justice Robert Jackson, but interestingly enough, Jackson is proof that sometimes attorneys general get legal questions wrong and presidents get them right. When Congress passed the Lend Lease Act, it included within it an unconstitutional legislative veto that, given the importance of the subject of the legislation (our early assistance to the United Kingdom in World War II), Jackson was willing by legal artifice to overlook. Jackson opined that the legislative veto might be viewed not as an improper encroachment upon presidential authority but merely “a reservation or limitation by which the granted power would expire or terminate.” President Franklin Roosevelt would have none of it, and in signing the legislation explicitly indicated that he would not honor the legislative veto portion. FDR gave Jackson a legal opinion that he insisted be put in the files of the Department of Justice so that no future president would think that FDR had unthinkingly acquiesced in this encroachment upon presidential authority. FDR is an historically heroic figure in the national mind, but in this instance, he was vindicating the Constitution by announcing an intention not to follow an inconsistently written law of Congress. John Yoo is given far less acclaim than FDR, if not actually derisively treated in the legal academy, for a similar interpretive exercise—namely, suggesting that Congress lacked the authority to preclude the president from exercising his commander-in-chief responsibilities. Did not both FDR and John Yoo, in some coarse sense in these instances, advocate the “breaking” of the law in deference to the higher law of the Constitution? If Jackson had agreed with FDR, would he have been subject to removal by virtue of the precedent now being argued for in the Gonzales case?

You conclude that “the sonorous phrase “rule of law” turns out to be pretty hollow if the law that is ruling is nothing more than the plenary power of the president to dismiss or hire for any or no reason.” Here, I dissent. FDR’s admonition to his own attorney general not to overlook the defense of executive power even for a worthy wartime measure illustrates how important it is to keep the structural landmarks of the Constitution and observe the separation of powers. This is especially true where the ultimate disagreement is not a corrupt or venal or venally naive disregard of the law (Watergate, but also, unfortunately, Monica Goodling’s apparent disregard of limitations on inquiring about political affiliation for civil service positions), but an honest effort to take care that the laws (including the laws against public corruption, bribery, kickbacks, and voter fraud that Mr. Iglesias has been said not to have been particularly effective or energetic at) are faithfully executed, even if the encouragement for the enforcement of these particular laws happens to have been emphasized by a member of Congress of one’s own party. Here, Harry, I hope our standards are the same—that is, prosecution may well be warranted where a neutral appraisal of law and fact supports it, irrespective of whether Sen. Domenici or Sen. Feinstein does as well.

These conversations have been enjoyable. They have been—especially on your part—informed, gracious and civil, and I have learned much from them. I have appreciated deeply how the two of us, having served the Department of Justice at different times and for different presidents, nevertheless revere the memory of that service as a sacred trust. What I have enjoyed the most about our exchange is that it illustrates that behind the best elements of both sides of the Gonzales inquiry is simply the desire for a reaffirmation of the privilege of representing the United States of America. I have represented here that the retention of Alberto Gonzales advances that goal, and you the contrary. My greatest hope, and I’m certain yours, is that the goal prevails even if our particular desired outcome does not.

Douglas W. Kmiec is the Caruso Family chair and professor of constitutional law at Pepperdine University. He is a former U.S. assistant attorney general and the head of the Office of Legal Counsel.