Not My Decision

I'm just a little ole health care lawyer, not a con law expert, but as I've been following the US Attorney scandal, I've been puzzled by the President's attempt to hide from responsibility on this one. Although he has noted on several (many?) occasions that the US Attorneys serve at the "pleasure of the President," he also has studiously tried to avoid acknowledging his role in the firing of the US Attorneys. Yet, isn't he the only one who could make that decision? It's not something he could delegate without at least being involved in the delegation process and therefore having some level of knowledge of what was at issue. I thought, WTF do I know? Con law was long ago & far away from my area of expertise.

In all of the press on this, I hadn't seen this angle discussed. Until now. Anonymous Liberal, writing at Crooks & Liars, in A Decision The President Alone Must Justify. He also observes the distancing by the White House, but points out:

Here's the problem, though. As Marty Lederman points out, the relevant statute–28 U.S.C. 541(c)–vests the power to remove U.S. Attorneys with the president ("Each United States attorney is subject to removal by the President.") As we've repeatedly been told, U.S. Attorneys serve at the pleasure of the President–not the pleasure of the Attorney General (and certainly not the pleasure of the Attorney General's chief of staff). The decision to fire a U.S. Attorney–much less eight of them–is unquestionably one for the president to make, so if President Bush was truly out of the loop on this, that's a problem in and of itself.

At Balkinization, Marty Lederman makes this same point, So Much for the Unitary Executive. Lederman follows the winding explanations of the White House to deflect from the President's personal involvement. After citing a Tony Snow denial that the President was even told of the decision, Lederman says:

That's fairly remarkable and troubling, if it were true -- that the Attorney General fired eight U.S. Attorneys who are, by statute, removable by the President, and did so without even getting the President's approval for such a serious decision!

That's why it's almost certainly not true. It's virtually inconceivable that the President did not sign off on the removals (even if he was not intimately involved in the discussions that led up to the final choices). The President, in his briefing, undermined Snow's subsequent claim:

"These U.S. attorneys serve at the pleasure of the President. I named them all. And the Justice Department made recommendations, which the White House accepted, that eight of the 93 would no longer serve."

Further, he notes that the claim of executive privilege, even if otherwise applicable, would not likely apply if the President weren't involved in this situation.

So, Bush is the Decider-in-Chief, except when he's not. Then, I guess he's the Non-Decider.

Tags: Bush, Law, Politics, Attorneygate