Stanley I. Kutler: Congressional culpability in the US attorney mess

Congress is on the verge of rare bi-partisanship: the administration's calculated decision to rid its ranks of "disloyal" U.S. attorneys, who did their duty to enforce the law without political fear or favor, has roiled the blood of Democrats and Republicans alike. Attorney General Alberto Gonzalez's days appear numbered; at the very least, his authority is severely diminished. Karl Rove, the architect of many Democratic defeats and Harriet Miers (alas! Poor Harriet, destined once again to be a designated scapegoat) are also in sight, self-incriminated through the magic of their e-mails.

The blame game is on; the fault, however, lies in other directions. The Bush administration's dismissal of prosecutors flowed from a simple power-grab and an intrusion on the Senate's prerogatives--and all this with the acquiescence of a friendly, compliant, and uninterested Congress. Once again, Congress has abdicated its proper constitutional place as a separate, coordinate department; instead, it is an accomplice, an enabler, for the administration's assault on traditional separation of powers concepts.

The legislative history supporting the administration's wish to rid itself of allegedly "disloyal" or "poorly performing" U.S. attorneys is quite clear on congressional culpability. Senator Arlen Specter (R-PA), then riding high as chairman of the Senate's Judiciary Committee, inserted a provision into new Patriot Act legislation, allowing the president to replace U.S. attorneys. The provision clearly allowed the administration to leapfrog the constitutional requirement for senatorial consent for new appointees.

Specter later sheepishly admitted he knew nothing about a provision that he sponsored until Senator Diane Feinstein (D-CA) informed him. "Who knew?," he said in seeming innocence; "know thyself," is the proper answer. Specter subsequently acknowledged that his aide had inserted the provision. And we eventually learned that the aide had been a Clarence Thomas law clerk, maybe foisted on the senator by the administration, anxious as he was to have the administration support his quest for the chairmanship. Or could it have been required payback for the president's support of Specter against a right-wing primary opponent? The aide, by the way, is now a U.S. attorney in Utah. He has declined any comment. Traditional civics lessons no longer apply. Congress passes bills; the president signs or vetoes them; if he vetoes, Congress may override. Now, complex, controversial bills often pass without debate in the dead of night. Congressmen once proudly had their names on bills; now we have in-your-face legislation such as the Defense of Marriage Act, written by religious lobbyists and approved conservative groups.

Legislation often originates in K Street lobbying offices, not those of the Members. The Richard M. Nixon Foundation hired Cassidy & Associates--a self-styled "leader in the government relations industry"--to provide legislation requiring the National Archives to transfer Nixon's papers and tapes to his own museum, where his Foundation and family, you can be sure, will maintain a watchful eye on their use. The legislation passed after midnight, with no debate. Find a Member who understood the bill's content--other than the putative sponsor, the college roommate of the president's son-in-law.

We have watched this administration invoke unknown, discredited, and dubious constitutional theories; in this case, it insured the abdication of a senatorial constitutional power. The "unitary executive" notions of David Addington, Vice President Cheney's chief of staff, are perilously close to reality. Here they used the fearsome umbrella of the Patriot Act purely for its own aggrandizement. The Specter provision adds a new twist to the alarming usurpation and surrender of Congress's rightful powers. If Specter did not author it, and an aide inserted it, allegedly unbeknownst to the senator, then the administration has effectively infiltrated Congress. Such stealth tactics are staggering in their implications.

Forcing Gonzalez's resignation or subpoenaing Rove and Miers is not the remedy. Congress needs to take its legislative tasks more seriously, and cease being and the administration's handmaiden. To that end, the Senate by a 94-2 vote now has taken a first step and repudiated Senator Specter's passive "who knew?" position. The House should follow suit. Everyone loves to vote against scandal. Will we then have one of Bush's "signing statements"? His Imperial Presidency, one suspects, remains alive, although not too well at the moment.