U.S. Attorneys and the Constitution-in-practice

The U.S. Attorney purge brings the political realities into closer alignment with the nominal status of those officials as political appointees of the President. That is, I think, A Bad Thing.

A friend learned in the law doesn’t fully share my concern about the institutional power shift represented by the purge of U.S. Attorneys and their replacement by Presidential appointees who need never pass through confirmation hearings in the Senate:

My tentative thinking has been that U.S. Attorney is a political appointment subject to political removal, though there may of course be political checks on that removal, in the form of criticism.

Yes, a U.S. Attorney has always been a political appointee, but not in practice the political appointee of the President. The President could remove him (though that has been done rarely; apparently only three times since 1981 other than at the beginning of an administration), but, until now, not in practice replace him. And the Senators who have the practical power of appointment have not had the power of removal.

When I worked at DoJ, the late Daniel Patrick Moynihan (this was in 1979, when he was still considered a politician, rather than an oracle or a saint) wanted to install as U.S. Attorney for the Western District of New York a lawyer thought, by some, unduly friendly to the Mafia family then powerful in Buffalo. I was one of the conduits by which those concerns were filtered up through the Department. At the end of the day, the Senator was told that his nominee was not acceptable, and that he might choose another.

Query: To what extent has this curious piece of quasi-Constitutional practice found its way into the literature?

Another reader, whose partisan orientation I think you’ll be able to guess, reminds me of the White House talking points on this:

At least it’s not a novel offense; You’ll recall that Clinton did something of the sort when he first took office. Only he disguised it as a mass firing, merely failing to rehire the attorneys he really wanted to be rid of.

Near as I can tell, the only real difference is that Clinton entered office with a full slate of investigations already needing to be quashed, while Bush took a while to accumulate some. But accumulate them he did.

Clinton (like Bush) replaced all the U.S. Attorneys at the beginning of his term, rather than waiting for their terms to expire. But once the new appointees were in place (not, in practice, his choices, but those of the Democratic Senators from each state) he didn’t then fire them. And, had he done so, he couldn’t have replaced them; interim U.S. Attorneys were chosen by the judges of the district, and permanent replacements required Senate confirmation. That’s what changed in the Patriot Act revisions made by subterfuge last fall.

Now Bush has created a situation in which U.S. Attorneys, once appointed, are as much his creatures as regional EPA administrators. That’s a big change.

For those of us who do not venerate St. Bill, the constant repetition of “but Clinton did it” gets extremely boring. That’s especially true in this case, where it’s false.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com