Three simple things besides raw partisanship explain the current rhubarb over replacing U.S. attorneys: ignorance, fear and myth.
The ignorance may be willful. Some seem unaware of a basic fact about the Constitution. It entrusts all federal executive power to a single individual: the president. Legislators jealousof power find this inconvenient. Executives fearful of criticism find it scary.
So we end up with a president exercising his rightful authority to replace U.S. attorneys and a Congress doing its necessary job of oversight. Yet the Bush administration offers limp, timid, nonsensical and self-contradictory explanations.
Meanwhile some members of Congress — hoping not only to extract a proper political accounting from the president, but also to make partisan hay — overreach, questioning not just the wisdom of the executive’s decisions, but the very legitimacy of its power.
Perhaps they need a fifth-grade civics lesson.
The framers understood that executing laws, as opposed to making or interpreting them, requires clear authority and a chain of command. Command brings responsibility. They left no doubt as to where the executive buck stops.
A president’s core role in foreign affairs is as commander in chief. When diplomacy has had its day, ultimate recourse for the safety of a sovereign nation is to military might. No one doubts the president’s authority to command the troops; to delegate command to subordinates; to appoint commanders in whom he has confidence; to remove commanders in whom his confidence has been lost; and to replace commanders simply when he finds better ones.
And no one doubts the duty of a president to answer, politically, for his conduct of war — including his choices of personnel for a war’s prosecution.
There is a corresponding core role of the president in domestic affairs: the power of prosecution. If every other means of taxing, spending, regulating and administering fails to attain required obedience to legitimate demands, the last resort of a lawful government is to sue the noncompliant, whether in civil or criminal proceedings.
Congress decides what the law should be, and what kinds of suits should be brought against what kinds of defendants. Courts interpret what the law, as enacted, means and decide cases. It is the job of the executive to sue.
Ultimate responsibility for the government’s choices, in the prosecution of crime as in the prosecution of war, rests with the president. No one should doubt, therefore, the authority of the president to appoint prosecutors in whom he has confidence, and to remove and replace prosecutors when he thinks he should.
That there is doubt reflects the muddled constitutional thinking of our time. The rule of law subjects authority to accountability; the principle of democracy makes accountability a properly political matter.
But people in authority are leery of accountability. It’s nice to be in charge when crime statistics are low. One is happy to attribute such tidings to one’s own executive or legislative decisions.
But when crime is rampant, or corruption in public office is rife and hitting close to home, some leaders, including some presidents, have found it more comfortable to put distance between themselves and controversial decisions.
Thus has been born the myth of “independent prosecution.”
Prosecution is presented as an alabaster ideal, pristine and insulated from politics. There is even a theory holding that prosecutors should not answer to the president or the attorney general, but to some abstract notion of the “public good.” Such an image of prosecution is not only nonsense, it is dangerous.
Prosecution is a terrible power. Even without winning a judgment or conviction, the mere decision to prosecute imposes enormous costs on the purses, reputations, and, indeed, the lives of defendants.
It is the full force of sovereignty brought to bear on an individual. Someone should be accountable for it, and in the federal government it’s the president, the only executive who is elected and thus directly answerable to the people.
If the president is not responsible for the exercise of this great power, then no one is. And irresponsible exercise of power is the very definition of tyranny.
Let the president act. Let Congress question him for his actions. Let the president answer truthfully and, one hopes, intelligibly. Let Congress spread the facts on the public record. And let the people keep all this in mind when they go to the polls.
Joseph A. Morris, a Chicago lawyer, was a senior official in the Reagan Justice Department.
