Couric & Co.
March 29, 2007 10:40 AM

"Performance" Or "Politics"?

By
Andrew Cohen
Topics
Field Notes
(CBS)
Lawyer Andrew Cohen analyzes legal affairs for CBS News and CBSNews.com.
Even before he testified this morning on Capitol Hill, D. Kyle Sampson, the now-deposed chief of staff to Attorney General Alberto Gonzales, was explaining to us in his own wordsprecisely why we all are making too big a deal out of the decision last year by the White House and Justice Department to fire eight U.S. Attorneys. "Politics," "job performance," it all amounts to the same thing, Sampson told us, and anyway, he added, since all federal prosecutors serve "at the pleasure of the President" the executive branch never really needs a reason in the first place to fire them at will.

More specifically, Sampson argues that a federal prosecutor's job performance is necessarily determined in part by her political fealty to the administration that appointed her. So, the argument goes, a U.S. Attorney can be deemed to be below certain professional performance standards if that prosecutor is not going along with the administration's political priorities even if she is otherwise doing a great job of helping enforce existing federal laws. This is a devastatingly short-sighted position for any executive branch official to take and the Congress (and the nation's community of lawyers and judges, for that matter) should reject it immediately.

Why? Because if Sampson's argument carries the day U.S. Attorneys all over the country will lose whatever remaining appearance of political and partisan objectivity and neutrality they continue to possess. If you judge federal prosecutors more by their loyalty to Washington--nothing wrong with that, say Sampson and Company--you necessarily judge them less by their adherence to the rule of law and by their responsibilities as tribunes of the federal legal system. This changed calculus would be ruinous to the way federal law is enforced-- and just as importantly the perception of how it is enforced. It's no wonder that current federal prosecutors blastedthe Attorney General yesterday during a private meeting.

Every federal investigation and indictment would promptly become subject to politically-motivated criticism which now only occurs in a small fraction of cases. U.S. Attorneys would lose their "above-the-fray" stature that they still most hold in their communities. Right now federal prosecutors act as a legal and ethical bulwark—a check and balance—between you and me on the one hand and the awesome power of the government on the other. They are not supposed to be mere instruments of political will. They are supposed to exercise independent judgment to determine which people and corporations ought to be investigated and indicted and which should not—decisions which by their definition are not supposed to be political.

Sampson and others who propound the "unitary theory" of executive power-- which posits that all power within the executive branch of government ought to lie with the president-- are now trying to implement this theory to the realm of federal prosecutors. The defense now from Sampson (and the Justice Department) isn't that the firings were justified by the work the U.S. Attorneys actually did—an argument that would make sense to the vast majority of Americans—but by the larger argument that federal prosecutors as a whole now ought to be more beholden to the president's partisan priorities than they are to current reach of federal law.

It is a daring argument that no White House has made and acted upon before-- not Ronald W. Reagan's White House, not George H.W. Bush's White House and not even Richard M. Nixon's White House. That's why today is a big day, not just for Sampson but for the rest of us, too.



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by sanfelz March 30, 2007 7:02 PM EDT
Previous to the Patriot Act, the president could fire any US attorney, and appoint a different person with the advise and consent of the Senate. The Patriot Act changed that giving the executice branch affective control of the judiciary. That is too much power for one branch of government over the others. This administration pushes the limits of the constitution until constraints on power of thbe excutive branch have no meaning.
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by gkc99 March 30, 2007 1:13 AM EDT
It's interesting how the religious fanatics are a big part of the Bushit administration and also of the government of Iran. Kind of like different sides of the same coin. The Gonzo apparatchik who is now taking the 5th amendment got her law degree at Pat Robertson's law school. It's hard to believe there is such a place, but that's where the current rulers of America go for their legal talent, apparently. A true mark of religious fanaticism is the inability to absorb or accept data that contradicts the world view. Bushit certainly suffers from that disease. About time to run the born-agains back to hell where they came from!
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by amexmale March 30, 2007 12:49 AM EDT
Mr. Cohen's article is right on point. Most of you who have posted comments have, however, missed it.

Whether Bush did it, Clinton did it, Reagan did it, or they all did it doesn't make it right. Indeed, even having the nominal authority under the Constitution to discharge US attorneys doesn't make it right to do so.

It is always wrong to abuse power for the sake of politics. And yet, all eleven presidents who have served during my lifetime have done so. And each one of them does it more than his predecessor.
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by bigal6868 March 29, 2007 9:05 PM EDT
The censors removed a three letter word that begins with s and ends with x in my first post. The censor's asterisks made my original word seem obscene.

I want to respond to jdotchin. I met a Conservative Christian man recently who said, "I won't be happy until we wipe every Moslem off the face of the earth." He was disturbingly serious. He and "Radical Islamists" are identical twins, seeing the other as the real villain whom God really hates.
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by goldmj March 29, 2007 9:02 PM EDT
I'm so glad to see the radical right showing it's true disdain for all Americans on this site. Divert to Clinton, throw a tantrum and insult anyone who disagrees with you - all well worn tactics of these downtrodden bullies. Not to mention scare the bejeezus out of everyone by warning of radical Islam's intent to destroy us - any idea who radical Islam might be today (Saddam was not Islamic and where the heck's Osama)? How might they go about "wiping us off the face of the earth" if we're minding the store like we should have been doing on 9/11?

The "knuckle-dragging American public", as one obvious right-winger put it, still cares about it's own and why they are still dying in a war for no apparent reason (other than oil). Has anyone mentioned the strategy that we have to "train the Iraqi's to stand up before we can stand down" lately? Funny, that reason for still being in Iraq, as well as so many before it, went away pretty quickly.

The rubber stamp Congress had its day. Bush, Cheney and Rove's attempts to intimidate everyone who disagree with them, even his appointed staff and attorneys is finally having its comeuppance.

When will impeachment be put back on the table?
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by bigal6868 March 29, 2007 8:54 PM EDT
The President has the right to hire and fire US Attorneys. The issue is not about his authoriy; the issue became "public servants" lying to the public they serve to promote partisanship.

Clinton was impeached for lying about ***. What is more obscene is that 3200 young men and women have died over a lot of lies, 3200 facts that America seems indifferent to. Look at Pat Tillman's case. Look at Walter Reed. Talk to any of the estimated 300,000 Iraq veterans with PTSD who can't get treatment due to underfunded VA centers.

Putting Gonzales on the hot seat is not a "witch hunt." There are a lot of "servants" in the Executive branch whose dark deeds need illumination.
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by sangjmoon March 29, 2007 5:01 PM EDT
But the issue isn't the reason for these hearings because there is no issue. The reason for these hearings is to build up the negative media attention against Republicans in preparation for the 2008 elections. The Democrats better hope the fickle US public doesn't suffer from hearings-fatigue before the elections. As with political mud slinging, the slinger can get just as dirty, if not more.
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by sangjmoon March 29, 2007 4:55 PM EDT
Even Reagan didn't fire all 93 from Carter's era. At least Reagan took the effort to look at each one. Clinton just whitewashed all of them as being Reagan flunkies. Shouldn't congress have hearing on the unfairness of Clinton's firings?
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by sangjmoon March 29, 2007 4:46 PM EDT
The president is allows to fire executive appointees at will. I guess by your definition, "at will" means only at the beginning of the term? -and only for Republicans?
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by nerfff-2009 March 29, 2007 4:45 PM EDT
Ironically, Clinton's firing of all fed attorneys insulated him from political fallout. If nothing else, the action was at least "fair" to all the attorneys. Bush would probably have fired all 93 as well if it hadn't been for 911. In light of the terror threat, it would have appeared irresponsible to fire them all. If Cohen were primarily motivated by logic, he would mention these points. But, of course, his primary motivation is not logic, but politics.
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