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WASHINGTON � The integrity of the process for appointing and removing U.S. attorneys has been severely damaged by the recent firings of eight prosecutors, say a number of scholars, government experts and ex-prosecutors, and Congress may need to impose some type of “fix” to restore public confidence. There is legal precedent to support imposing a check on the president’s power to remove U.S. attorneys, they agree. That option � as well as measures to ensure that members of Congress don’t exert political pressure � should be on the table for discussion, they add. And although they agree damage has been done, they disagree on how big a “fix” may be needed to restore integrity to a system that has worked well for years. Among the suggestions on how to prevent a recurrence: • Require the president to communicate to Congress reasons for removal; • Give authority to the U.S. Department of Justice’s inspector general to inquire into removals; • Create for removed U.S. attorneys a cause of action for retaliation; • Ensure through legislation or some other mechanism that U.S. attorneys can go to Congress without subpoenas to raise concerns; • Require the attorney general to promulgate clear and public guidelines for assessing U.S. attorney performance; • Establish in writing ethical guidelines on contacts between members of Congress and U.S. attorneys. Lesson from Watergate The lesson from the firing of Watergate Special Prosecutor Archibald Cox in 1973 was that there should be some restriction on the president’s power to remove that type of prosecutor, said Professor Charles Tiefer of the University of Baltimore School of Law, a former general counsel and solicitor to the U.S. House of Representatives who sees some “eerie parallels” between that episode and the present controversy. Congress crafted just such a restriction in the 1978 statute creating the Office of Independent Counsel, he said. Two Supreme Court decisions � Morrison v. Olson and Humphrey’s Executor v. U.S. � support Congress’ power to limit the president’s removal authority, said Tiefer and executive power scholar Peter Shane of Ohio State University Michael E. Moritz College of Law, who served in the Reagan Justice Department’s Office of Legal Adviser. “The court has already suggested that providing some protection from at-will discharge of prosecutors is not inconsistent with the president’s authority to take care that laws are faithfully executed,” said Shane. “The president would have to retain authority to fire somebody for cause, but it’s not clear he has to retain authority to fire somebody for disagreements with policy.” Tiefer suggested, and others agreed, that there would be little support for full “for cause” protection from removal because U.S. attorneys are not in potential conflict with the president the way special prosecutors are. But there is a lesser restriction on the president’s removal power in place today. Congress, in the Inspector General Act, requires the president to communicate his reasons to Congress for removing an inspector general, who is appointed by the president and confirmed by the Senate. The rationale for that requirement is that the inspector general statute requires a nonpartisan appointment, said former Justice Department Inspector General Michael Bromwich, now a partner in the Washington office of Fried Frank Harris & Shriver of New York. “I don’t know if we have reached the point where it’s necessary to have a similar reporting requirement for the removal of U.S. attorneys,” he said. “I do think this scandal has been extremely damaging to the integrity of the entire selection and removal process. It has raised people’s awareness of the risks of politicizing the process, and I think people will be seriously considering this as a possibility.” A “less dramatic” approach, he suggested, would be to eliminate any ambiguity regarding the authority of DOJ’s inspector general to investigate when there is a credible allegation of misconduct in the removal process by DOJ officials, as in the current controversy. The carefully constructed checks and balances surrounding U.S. attorneys has been thrown “out of whack,” said congressional scholar Norman Ornstein of the conservative American Enterprise Institute. “I do believe you need a next step, after the investigation, but not a huge step � one that requires justification, reasons put in writing for removals,” he said. “It may be we have raised consciousness about this so that the next president will be a little more careful, but I don’t want to rely on that either.” Former Representative and ex-U.S. Attorney Asa Hutchinson, a partner at Venable in Washington, said congressional guidelines on contacts between prosecutors and lawmakers should be a routine part of ethics training for new members. He conceded that he didn’t know if any guidelines were in writing, adding, “When I came in, it was sort of passed down by word-of-mouth.” The “greater challenge,” Hutchinson said, was for the Justice Department. “There’s nothing more important than the close working relationship between the leadership of DOJ and U.S. attorneys,” he said. “Clearly that relationship has been damaged.” But Hutchinson was skeptical of limiting the president’s removal power because that in turn diminishes the authority of U.S. attorneys. “One of the things that gives U.S. attorneys such clout is the fact they serve at the pleasure of the president,” he said. “So much of this is guided by common sense and tradition. That’s one of the things not handled well here.” Bruce Fein, a former associate deputy attorney general in the Reagan Justice Department, said that “Congress could at least in a resolution direct the attorney general to promulgate a report card by which U.S. attorneys are judged and make that public.” He added, “Then we would have standards in the public domain as to whether improprieties are going on.” But former U.S. Attorney James S. Brady, a partner with Miller Johnson, in Grand Rapids, Mich., said, “I think you fix something like this the way you did Watergate. It’s through the integrity of people. If what happened in New Mexico, Arkansas and Seattle is true, then Alberto Gonzales let politicians run the conduct of his office much like a politician would run a ward office. People need to be held accountable.”

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