Democrats are trying an unconstutional coup on Presidential power over Justice Department

Douglas Kmiec:

THE DISPUTE OVER the dismissal of eight U.S. attorneys poses a fundamental question: To what degree may the president exercise authority over the direction of law enforcement?

In the aftermath of Watergate, President Carter directed Atty. Gen. Griffin Bell to prepare legislation that would make the attorney general an appointed post for a definite term, subject to removal only for cause. Carter's idea was to keep the attorney general independent of presidential direction to ensure that the Justice Department's authority would never again be abused for political purposes, as it had been during the ethically troubled Nixon presidency.

Despite Carter's noble intent, Bell refused. In a little-known memorandum to the president dated April 11, 1977, he explained why. Any law that restricted the president's power to remove the attorney general — and, by inference, to fire any U.S. attorney — would likely be found unconstitutional. The president, Bell reasoned, is held accountable for the actions of the executive branch in its entirety, including the Justice Department; he must be free to establish policy and define priorities, even in the legal arena. "Because laws are not self-executing, their enforcement obviously cannot be separated from policy considerations," Bell wrote.

Carter argued that the attorney general is different from other Cabinet officers. The job entails dual responsibilities: carrying forward White House policies like any other Cabinet official, and representing the law of the United States, whether it coincides with the president's policies or not. Bell agreed, but he found that insufficient to justify separating the attorney general and subordinate U.S. attorneys from presidential direction.

Bell anchored his reasoning on Supreme Court precedent, especially Chief Justice William Howard Taft's opinion in Myers vs. United States (1926).

Congress enacts different types of laws, the chief justice opined. Some laws require close supervision by the president, while others draw upon the expertise found within the specific agencies of government. Much law, however, generally empowers the executive, and when subordinates perform these functions, "they are exercising not their own but [the president's] discretion," the court said. "Each head of a department is and must be the president's alter ego in the matters of that department where the president is required by law to exercise authority."

The court's analysis did not deny the unique nature of the Justice Department. Indeed, Taft acknowledged that there may be duties that require evenhandedness from executive officers, "the discharge of which the president cannot in a particular case properly influence or control."

Improper influence is, of course, exactly the concern of Sens. Patrick J. Leahy (D-Vt.) and Dianne Feinstein (D-Calif.) now, when they seek to ascertain if specific prosecutions were obstructed for partisan reasons. Yet, to illustrate the subtlety of the Senate Judiciary Committee's inquiry, the court also held that a president can remove any appointee from office for a particular prosecution "on the ground that the discretion regularly entrusted to that officer by statute has not been on the whole intelligently or wisely exercised."

...

Kmiec concludes that history and precedent is on the side of Gonzales. Kmiec is a law professor at Pepperdine who worked in the Justice Department in the late 1980's. His arguments are of the legal nature of the firing and do not go to the underlying bad faith of the Democrats in pursuing the matter for political gain and demagoguery. Nor does it address the Democrat's bad faith attempt to undermine the prosecution of voter fraud on behalf of Democrat candidates.