Yesterday, I considered some of the arguments that might come up if Congress continues to contest the president’s claim of executive privilege with respect to conversations and documents pertaining to the firing of some U.S. attorneys. I focused in particular on the interests Congress might assert as outweighing the interest of the executive branch in candid discussion.
The congressional interests in this context does not seem strong. Removing U.S. attorneys is strictly the president’s prerogative, and there’s nothing much for Congress to legislate about in this regard. Moreover, if Congress needs information for legislative purposes, it can get the information under the deal the president has offered.
Congress’s main argument likely would be that it needs sworn and transcribed testimony in order to investigate, pursuant to its oversight and investigative role, whether the administration abused its power to remove U.S. attorneys. Such abuse would exist if a U.S. attorney were removed to obstruct an investigation or because he or she wouldn’t bring a frivolous case against Democrats.
One problem with this argument is that there’s no reasonable basis for believing that either of these things occurred. Congress has been able to investigate thoroughly communications between the Justice Department and the White House, and this investigation produced no evidence that any U.S. attorney was removed to obstruct an investigation or for refusing to bring a frivolous case. There is some indication that a few U.S. attorneys may have found their jobs in jeopardy because they wouldn’t pursue voter fraud cases against Democrats. However, there’s no evidence that any of these instances amounted to more than a disagreement about the strength of the contemplated cases.
Moreover, Congress can invetsigate whether meritless cases have been brought for partisan purposes, and whether investigations of Republicans have been obstructed, without probing communications within the executive branch. If Congress is genuinely concerned about such potential abuses, as opposed to simply attacking the White House for its own partisan gain, why not investigate the actual litigation practices of the U.S. attorney offices in question? If there is evidence of investigations of Republicans being aborted or stymied due to the ouster of a U.S. attorney, or of meritless cases being brought against Democrats by a replacement U.S. attorney, then there might be a substantial reason for someone to look behind the scenes of the executive branch to determine whether a particular U.S. attorney was removed for criminal reasons. If there’s no other mechanism in place to take that look (no special prosecutor, no adequate investigation by the Justice Department’s Inspector General), then Congress might have a substantial interest in doing so.
So far, I’ve seen no one point to frivolous litigation against Democrats brought by any office where a U.S. attorney was fired. Moreover, all indications are that corruption cases against Republicans are being vigorously pursued by such offices. I know, for example, that Carol Lam’s successor in San Diego is pushing hard in a case stemming from the Duke Cunnigham investigation against several defendants including the former number three person in the CIA.
Perhaps more digging by Congress would uncover evidence of partisan wrongdong by the successor U.S. attorneys. But until it does, Congress does not have a strong interest in discovering what employees in the executive branch said to one another about which U.S. attorneys to remove.