Be Careful What You Wish For

The former Bush administration and the House Judiciary Committee (in effect, the Obama administration) have reached an agreement whereby Karl Rove and Harriet Miers will give sworn testimony to committee staff relating to the firing of a handful of U.S. Attorneys during President Bush’s second term. Of all the faux scandals that the Democrats ginned up during the Bush administration, this may have been the dumbest. U.S. Attorneys are political appointees. They serve at the pleasure of the President. Political advantage is an excellent reason to appoint, or to replace, a U.S. Attorney. Legally, there is no such thing as an “improper” reason for replacing a political appointee.

Nancy Pelosi, whose knowledge of these matters is fragmentary at best, hailed the agreement:

House Speaker Nancy Pelosi said the agreement “is a great victory for the Constitution, the rule of law and the separation of powers.”

“Congress now has the opportunity to uncover the truth and determine whether improper criteria were used by the Bush administration to dismiss and retain U.S. attorneys,” she said.

“Separation of powers?” What on earth is she talking about? Congress has nothing to do with the replacement of a U.S. Attorney, who–to repeat–serves at the pleasure of the President. This is politics, pure and simple, and in a sane political world, the Democrats would not be able to get away with this kind of frivolous attack.

For what it’s worth, though, I’m happy to see that Rove and Miers will be giving evidence, and I hope it’s made public. I have no idea whether Rove knows anything about this subject, but if he does, he will be more than a match for the Democrats on the Judiciary Committee. I assume that Harriet Miers does know something about the firings, and my guess is that the Democrats won’t be very happy to hear what she has to say.

The Justice Department tracks the performance of U.S. Attorneys’ offices using objective metrics–lawyers in those offices keep track of their time like lawyers in private practice, and DOJ keeps statistics on case loads, prosecutions initiated, etc. Some if not all of the U.S. Attorneys who were let go were poor performers according to these metrics, but the Bush administration downplayed the facts to spare their feelings. One would assume that under oath, these facts will come out. The Democrats may be sorry they asked.

UPDATE: One more thing: virtually every U.S. Attorney, like virtually every federal judge, is appointed at least in part because he or she has political connections. There is no such thing as a President randomly selecting some competent lawyer and making him or her a U.S. Attorney.

To take just one blindingly obvious example, the local lawyer who represents Al Franken in Minnesota’s Senate election contest is David Lillehaug. Lillehaug is a former U.S. Attorney for the State of Minnesota who was appointed by Bill Clinton because of his political connections in the Democratic Party. Now those same connections are making him a considerable amount of money representing Al Franken. Nothing wrong with that: Dave is a good lawyer and, as far as I know, was a reasonably competent U.S. Attorney. The point is that these are “political appointments” in both the technical and popular meanings of the phrase. The idea that it is a scandal if U.S. Attorneys are either hired or fired for political reasons is ludicrous.

SCOTT adds: I hope to do no harm to David Lillehaug’s reputation among his Democratic friends, but I want to add that I consider him a friend and an excellent attorney. I also think he was an excellent United States Attorney for the District of Minnesota. His professional excellence had quite a bit to do with his appointment as United States Attorney as I am sure it did with his retention by Al Franken in the recount litigation.


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