"Performance" Or "Politics"?

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.