Tuesday, March 13, 2007

Name the U.S. Attorney Firing Scandal

A few months ago I suggested that there needs to be a scarier term for global warming, something along the lines of "death tax." Now it's time for a new contest: Name the developing scandal involving the firing of the eight U.S. attorneys. Last week I referred to them as the "Justice Department Eight," and the same day Paul Krugman called them "the Gonzales Eight," which is probably more effective as agit-prop. But still, neither term refers to the scandal itself. It would be a shame if this scandal went unnamed, the fate of the great scandal of the Clinton years. (I favored "The Lewinsky Affair" for its double meaning but it never caught on.)

Before I get to the contest, here's one thought on the merits. I noted in my Friday post on this subject that in principle the President, acting through the Attorney General, can fire a U.S. Attorney without providing a reason. In his piece yesterday on FindLaw, Carl Tobias makes a similar point. He writes that "numerous Republicans claim the events are politics as usual, pointing out that, after all, U.S. Attorneys do serve at the pleasure of the president, but ignoring the long tradition of independence that has meant U.S. Attorneys are, in practice, generally not fired for political reasons." Tobias suggests that the limitations on the President's power to fire a U.S. Attorney are simply a matter of tradition, albeit one he would like to see respected. What Tobias overlooks--and what I overlooked in my earlier post--is that the Constitution, not just politics, constrains the President's ability to fire government officials. For example, if Gonzales had fired one of the Eight because the U.S. Attorney had converted to Islam, that would have violated one or more of the Religious Tests Clause, the First Amendment's Free Exercise and Establishment Clauses, and the equal protection component of the Fifth Amendment's Due Process Clause. (Justiciability might present a problem for separation-of-powers reasons but that doesn't go to legality.) Whether firing a U.S. Attorney for his failure to bring partisan-politically motivated cases, or failure to dismiss other cases based on partisan political pressure, is another forbidden ground set against the background presumption of employment at will, is not entirely clear. It's possible that the Justice Department Eight were not entitled to keep their jobs, but that firing them as part of a plot to use the government's prosecutorial power for partisan ends--if that is what happened--violates criminal laws and/or constitutes an impeachable offense. If, for example, the President told the Attorney General to fire all U.S. Attorneys who were not disproportionately prosecuting corruption cases against Democrats rather than Republicans, that would seem a fairly clear violation of the President's duty to take care that the laws are faithfully executed.

But enough about the merits. Now for the naming contest. I confess that I've got nothing on this. Over at
Daily Kos they seem to be calling it "Prosecutor Purge," which is okay but I believe we can do better. Nothing with "gate" in the end quite does it anymore. Perhaps someone can come up with something using the word "Justice" from the Department of Justice, but I've been unable to do so. Now that I've confirmed that I would not have had a successful career on Madison Avenue, I turn the matter over to commenters. I'll pick a winner (and give proper credit) tomorrow.