No Legislative Purpose?

Whenever a Republican scandal surfaces, no matter how serious the allegations or indefensible the conduct, we are immediately assured by a legion of conservative pundits and party shills that the whole affair is just a "tempest in a teapot" or "much ado about nothing." This reflexive talking point is then supplemented as the scandal wears on by a myriad of post-hoc justifications, almost all of which are absurdly hypocritical, inaccurate, and ahistorical.

Exhibit A is this Washington Times op-ed by former Reagan administration official James Warner. Warner writes:

The contrived controversy over the firing of eight U.S. Attorneys is largely an exercise in imaginary indignation. Congressional Democrats suggest that some of the firings may have been improper and demand to know the reasons for each of them. By what authority they make such demand is not clear, since the Supreme Court has ruled that, with limited exceptions, Congress has no voice in the dismissal of federal officers. . . .

If Congress can have no voice in the removal of U.S. attorneys and no reason is required to dismiss them, then by what authority do members of Congress demand to know why the attorneys were fired? Well, they do have subpoena power. However, since none of the documents they demand can possibly relate to any legitimate legislative purpose, it is not clear that the courts would uphold such subpoenas if the president refused to produce the documents. . . .

What can the president do to defend himself? The first thing is to get rid of Attorney General Alberto Gonzales. This is not the first mess for Mr. Gonzales. Second, find a replacement who is willing to tell Congress that he has no intention of abiding by subpoenas which relate to no legitimate legislative purpose.

This is, to put it charitably, an absurd argument. Let's start with Warner's premise: that Congress has "no voice in the dismissal of federal officers" and therefore no conceivable interest in inquiring why these eight U.S. Attorneys were fired.

Congress actually has extensive powers when it comes to setting the conditions for removal of federal officers. Only "principal" officers necessarily serve at the pleasure of the president. With respect to "inferior" officers, Congress may “limit and restrict the power of removal as it deems best for the public interest.” United States v. Perkins, 116 U.S. 483 (1886). And while the issue of whether U.S. Attorneys are "inferior" or "principal" officers has not yet been decided, at least to my knowledge, a strong argument can be made that they are the former. Of particular relevance is Morrison v. Olson, 487 U.S. 654 (1988), in which the Supreme Court held that a Special Prosecutor (ala Kenneth Starr) is an inferior officer and therefore Congress was within its power to impose a "for cause" dismissal requirement on the president. While it's certainly true that under current law U.S. Attorneys serve at the pleasure of the president, that law exists only because Congress passed it. And while I don't necessarily recommend changing that law, Congress would likely be within its power to do so. So the suggestion that none of the questions Congress is asking regarding the firing of U.S. Attorneys "can possibly relate to any legitimate legislative purpose" is totally absurd.

Moreover, even if U.S. Attorneys were deemed to be principal officers, there would still be any number of other legitimate reasons for Congress to inquire as to the circumstances of their dismissal. Congress's investigatory powers are incredibly broad. Members of Congress can hold hearings and investigate anything that is even remotely relevant to potential legislation, of any type.

On top of that, Congress unquestionably has a right to investigate potential wrongdoing by executive branch officials. Indeed, it's Congress's constitutional duty to impeach officials who are found to have committed certain types of wrongdoing. In the present case, any number of laws are potentially implicated, depending on what actually happened.

Warner advises President Bush to fire Gonzales and "find a replacement who is willing to tell Congress that he has no intention of abiding by subpoenas which relate to no legitimate legislative purpose." That's incredibly bad advice, at least the second part. Members of Congress would have no problem whatsoever demonstrating a "legitimate legislative purpose" for issuing subpoenas in this matter.

And finally, it's probably worth pointing out that during the Clinton years, the Republican-controlled Congress investigated anything and everything that might possibly embarrass the President. Where was the "legislative purpose" in investigating a real estate transaction from the 1970s or the firing of travel office employees or the inner workings of the Socks the Cat fan club?

The idea that it is somehow improper for Congress to inquire into the circumstances of an unprecedented mid-term firing of eight U.S. Attorneys is frivolous on its face, and it takes a remarkable amount of chutzpah to make such an argument at exactly the same time high-ranking Justice Department officials are pleading the Fifth and telling Senators that the Attorney General misled Congress.