Friday, March 09, 2007

The Unitary Executive & The Justice Department Eight

Could there be any clearer indication that the public rejects the "unitary executive" than the behavior of the Bush Administration in the brouhaha over the fired federal prosecutors? The "Justice Department Eight" did not enjoy civil service protection and engaged in a quintessentially executive function: Deciding whom to prosecute and then prosecuting. The unitary executive theory holds that because the Constitution vests the entire Executive power in "a President," all persons exercising executive power must be answerable to the President. Although the Supreme Court rejected the strong form of this argument in the 1988 independent counsel case, Morrison v. Olson, the Bush administration has continued to champion it, in signing statements and more broadly. Given that the AG undoubtedly had the technical legal authority to dismiss the Justice Department Eight, why didn't he just say something like "these are fine attorneys but the President, through me, wanted to take the department's priorities in a different direction, with different people?" Why, instead, did AG Gonzales feel the need to insinuate that the Justice Department Eight had performed deficiently?

The answer, pretty clearly, is that the public would have found the unitary Executive answer quite unappealing. We expect prosecutors to exercise independent, professional judgment, rather than to pursue a political agenda. We certainly don't want them pursuing a partisan agenda.

Thus one hopes (or at least I hope) that this latest episode comes to be regarded as the pendular reaction to the left's too-eager embrace of Justice Scalia's solo dissent in Morrison. He wrote there, in condemnation of the Independent Counsel Act:

An independent counsel is selected, and the scope of his or her authority prescribed, by a panel of judges. What if they are politically partisan, as judges have been known to be, and select a prosecutor antagonistic to the administration, or even to the particular individual who has been selected for this special treatment? There is no remedy for that, not even a political one. Judges, after all, have life tenure, and appointing a surefire enthusiastic prosecutor could hardly be considered an impeachable offense. So if there is anything wrong with the selection, there is effectively no one to blame. The independent counsel thus selected proceeds to assemble a staff. As I observed earlier, in the nature of things this has to be done by finding lawyers who are willing to lay aside their current careers for an indeterminate amount of time, to take on a job that has no prospect of permanence and little prospect for promotion. One thing is certain, however: it involves investigating and perhaps prosecuting a particular individual. Can one imagine a less equitable manner of fulfilling the executive responsibility to investigate and prosecute?

A decade after Scalia wrote these prescient words, liberals saw in Ken Starr's investigation of President Clinton the vindication of Scalia's warning. And perhaps Scalia was right. Perhaps the old Independent Counsel Act did not provide adequate safeguards against partisan uses of prosecutorial power. Yet Scalia's solution--rely on politics itself--has also been known to fail. It was, after all, the abuses of Watergate that gave rise to the Independent Counsel Act in the first place. That's not to say that politics will necessarily fail now. Perhaps Congress will be able to hold the Justice Department to account. But if so, it will only be because of the fortuity that the firing of the Justice Department Eight occurred during the one quarter of the Bush Presidency when Congress happened to be controlled by the Democratic Party.


egarber said...

Viewed through a wider lens, I think Watergate reflected the efficiency of the larger political framework. Clearly Nixon abused all sorts of powers – firing the prosecutor, using the FBI for personal gain, etc. But Congress stepped in to assume its responsibility; there were hearings and investigations that shed light on what was going on. And after all, Nixon would have been impeached, having lost Republican support during the process. Rather than illustrate the need for the IC statute, I think it’s just as easy to hold Watergate up as an example of why we DIDN’T need it.

Now to Mike’s point, it’s certainly valid to speculate that none of this would have happened but for the fortuity of Democratic majorities in both houses.

[As an aside (or maybe not), I don’t think power alignment is a random event – only 20 of the last 57 years have seen single-party control of all government levers, perhaps reflecting a public preference for balance.]

But more importantly – and this relates to the Libby post a few days back – the press is itself a check on power. Perhaps I’ve watched and read All the President’s Men too many times, but I think that as long as the media play their proper role, it will be possible to expose corruption / abuse even when one party controls everything.

Even though the media fell asleep at the wheel in the run up to the Iraq war, there’s been no shortage of information post-invasion about planning failures and intelligence manipulation. And corruption became an important issue for voters largely because the press stayed on the story.

egarber said...

I should add that I think the media came around on Iraq, making it much more difficult for the administration to fool us anymore.

The voters saw that and decided a change was needed last Fall.

Trevor Morrison said...

Nice post, Mike. I very much agree that if anything meaningful comes of this, it will be because it happens to have arisen during a period of divided government. In that sense, this may stand as a nice example of a point Daryl Levinson and Rick Pildes have made (and before that, Levinson on his own) -- that the Madisonnian vision of the legislative and executive branches acting as effective checks on one another just doesn't work in a system so dominated by party politics, unless the Congress and the White House happen to be controlled by different parties.

Garth said...

one quibble with Mike's post is that i would not take congressional investigation into the AG firings as a sign that the public rejects bush's unitary executive views.

had congress stayed in republican hands, the admin's claim that they serve at the leisure of the president may have carried the day.

only because we have a democratic congress, elected primarily in response to the Iraq war, are we getting meaningful investigation of what appears to be a truly shocking abuse of power.

the big picture reveals a White House slipping in a provision secretly allowing them to appoint AG's without congressional advise and consent, co-ordination between the WH and RNC to indict dem's and soft-pedal R investigations ahead of the election. as many have noted, these 8 didn't play ball, but who did?

the truly scary thing is we may never have discovered this had the plan worked.

Neil H. Buchanan said...

In response to garth's comment ("i would not take congressional investigation into the AG firings as a sign that the public rejects bush's unitary executive views"), Mike's point was not about Congress's reaction but about how the Bushies themselves have NOT chosen to defend their actions by simply asserting that they've done nothing wrong under the unitary executive theory.

As Mike's first sentence put it: "Could there be any clearer indication that the public rejects the 'unitary executive' than the behavior of the Bush Administration in the brouhaha over the fired federal prosecutors?" If the public bought this nonsense, the Bushies could simply say, "Yeah, we did it. What's the big deal?" Instead, they say, "Oh, no, this isn't political. This was for cause." I think they're right to calculate that the public wants to believe that federal prosecutors cannot be manipulated in this way.

It is surely true, though, that the sequence of events would have been different under a Republican majority in both houses of Congress: (1) Press reports, (2) Outraged editorials, (3) Calls by Democrats to investigate, (4) Statements of concern by a few Republicans (Specter, maybe Snowe) followed by capitulation, and finally (5) Jon Stewart making a sarcastic joke about what ineffective losers Democrats are.

Garth said...

i think the WH should have been prepared to push harder the theme that they are within their rights to replace AG's at will.

i think the public would have bought it. like the evesdropping, they may not like it, but facially it doesn't sound like a big deal. it was clear all along that congress definitely wouldn't like it because its a breach of their unwritten rules to prevent massive politicisation of the dept.

it seems there were two miscalculations made by the WH here. first, they didn't expect to lose one or even both of the Chambers. two, when they did, they didn't adequately prepare their spin and coach the players.

Garth said...

not AGs, sorry, but USAs.

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