Douglas Kmiec: An Historical Perspective on the Controversy over U.S. Attorney Firings
As Congress inquires into this matter, it must be careful not to subvert the intended constitutional structure, and historical traditions in this area, by allowing its own political calculus or motivations to play a role....
At the founding of the Republic, the contours of the relationship between the Attorney General and U.S. Attorneys were perplexing, and unsatisfactorily-defined. In those times, supervision of U.S. Attorneys was rather oddly given to the State Department, which had little interest in such matters; after all, U.S. Attorneys' jurisdiction is overwhelmingly domestic, not international. As a result, U.S. Attorneys pretty much did as much (or as little) as they wanted. Appointed in 1790, Edmund Randolph, America's first Attorney General, wisely asked for"directive" authority over the independently-minded officers who ran local U.S. Attorneys' offices. However, Congress adjourned without addressing his request - and as a consequence, Attorneys General regrettably were compelled to operate in a rather haphazard way for close to 80 years. (Randolph even received only a half salary and was expected to supplement his income with the private practice of law. Ruefully, Randolph would describe himself as something of"a mongrel" settling for the scraps from the Cabinet's table.)
By 1870, however, Congress had recognized both the need to create a formal Department of Justice, and the importance of placing the Department's components under well-articulated lines of authority. The value of executive supervision of local offices had finally been grasped.
Historically-uninformed voices seeking short-term political advantage jeopardize this value with hasty calls for Gonzales's removal or resignation. Any claims that the Attorney General ought to take a hands-off approach regarding local U.S. Attorney's Offices are historically inaccurate. Worse, they ask us to repeat a mistake that Congress reversed as far back as 1870.
Historically, the Executive Has Received the Benefit of the Doubt on Removals of Executive Branch Officials
Not only does the Attorney General historically have authority with respect to local U.S. Attorney's Offices, but he (or she) has also enjoyed the benefit of the doubt on removals of executive officers such as U.S. Attorneys, including those subject to Senate confirmation.
Why? Quite simply because it is the executive who is in the best position to evaluate U.S. Attorneys' performance, and who is responsible for it. In 1923, Chief Justice Taft, the only member of the Supreme Court to have also served as president of the United States, affirmed that removal authority vis-à-vis executive officers, even those subject to Senate confirmation, was an incident of the president's power to nominate, not the Senate's power to confirm. Taft put it this way in the landmark case of Myers v. United States:"The power to prevent the removal of an officer who has served under the President is different from the authority to consent to or reject his appointment. When a nomination is made, it may be presumed that the Senate is, or may become, as well advised as to the fitness of the nominee as the President, but in the nature of things the defects in ability or intelligence or loyalty in the administration of the laws of one who has served as an officer under the President are facts as to which the President, or his trusted subordinates, must be better informed than the Senate, and the power to remove him may therefor be regarded as confined for very sound and practical reasons, to the governmental authority which has administrative control. The power of removal is incident to the power of appointment, not to the power of advising and consenting to appointment, . . ."
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