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Attorney General Alberto Gonzales will go before the Senate Judiciary Committee on Tuesday to answer questions about the dismissal of eight U.S. attorneys. Gonzales must also determine the extent to which the Justice Department will open its files in response to subpoenas from both House and Senate committees. The expanding inquiry has already led to the resignation of at least two of the attorney general’s assistants, and Gonzales himself may be the next to go. It did not have to be this way. Historians are typically wary of counterfactuals; one can get trapped in endless speculations. But what if the attorney general had initially responded to public and congressional queries about the removal of those U.S. attorneys with something like this: “The president takes his constitutionally based removal authority very seriously for it is a critical means with which to manage the executive branch. He has exercised that discretion in these and other instances and should be judged on the basis of those decisions. He must, however, keep his decision-making process private to preserve his ability to make future decisions in as vigorous a manner as possible.” Far-fetched? Would Congress and the public have accepted such a justification, thereby avoiding the furor provoked by the attorney general’s lame references to the U.S. attorneys’ poor rankings? Perhaps. Those disenchanted by revelations about Guant�namo or domestic spying no doubt would have railed against such a pronouncement, but I suspect that any real opposition would have been short-lived. GROVER’S STORY Consider the case of Grover Cleveland, a Democratic president. He gained the White House in 1884 (for the first time) after a long period of Republican control. Although the House also shifted to the Democrats, the Senate remained in Republican hands and, not surprisingly, was wary of expanding Democratic control. As President George W. Bush and many others would later do, Cleveland sought to replace incumbent executive-branch officeholders with loyalists of his own party. Among those removed by Cleveland was one George Duskin, who served as the district attorney for the Southern District of Alabama, a position equivalent to that of today’s U.S. attorney. For reasons that remain unclear, Republican activists selected Duskin as a test case. (The choice was curious: Alabama Republicans themselves had called for Duskin’s ouster just a few years before, due to charges that he padded his expense account, drank excessively, and was unfair to the newly freed slaves. Moreover, as Cleveland was to quip later, the confrontation was “sort of [a] post-mortem proceeding” because Duskin’s term in office had already expired.) In any event, Senate leaders, whether or not they had studied Duskin’s record, responded to his removal by asking for “all papers touching the suspension and proposed removal from office of George M. Duskin.” Attorney General Augustus Garland duly provided information about John Burnett, the administration’s nominee to succeed Duskin, so that the Senate could exercise its constitutionally based power to consent to or reject his nomination. But the attorney general stated that he would not supply information concerning Duskin’s removal until he had the chance to confer with the president. The Senate answered back with a resolution: “Resolved that the Attorney General be, and he hereby is, directed to transmit to the Senate copies of all documents and papers that have been filed in the Department of Justice . . . in relation to the conduct of the Office of District Attorney of the United States for the Southern District of Alabama.” Despite the elevated rhetoric, Cleveland did not give ground. He instructed Garland to refuse to produce the materials, whereupon the Senate issued another resolution condemning the attorney general’s stance. Taking up the battle himself, Cleveland wrote, “[T]he important question then, is whether it is within the constitutional competence of either House of Congress to have access to the official papers and documents in the various public offices of the United States.” He added that the Senate had no right “to sit in judgment upon the exercise of my exclusive discretion and executive function” in replacing Duskin. Although the senators were likely not pleased with this response, they did finally back down and confirm Burnett. IT’S HIS CHOICE In fact, Cleveland was on solid footing. Whether elected in the 19th or the 21st century, the president has the full authority to discharge U.S. attorneys for any reason whatsoever. Indeed, this plenary removal authority is a vital cog in the machinery of governance: The current Justice Department’s “loyalty” rankings aside, the president has a right to expect his high-level appointees, who serve at his pleasure, to execute the administration’s policies faithfully and effectively. The power to remove assures that their actions can fairly be tied to the president himself. What purpose then is served by a congressional inquiry? Forcing a public justification of any removal may chill candid evaluations of officials’ performance within the administration. It might even undermine the president’s willingness to discharge officials whom he believes are not following his policies. A public explanation of a U.S. attorney’s deficiencies might well jeopardize an ongoing investigation or humiliate the officeholder. To be sure, there is legitimate concern today that the power to remove has been abused, as the dismissed U.S. attorneys have themselves suggested. The voters (and the media) have every right to demand information from the president as to why the prosecutors were removed. The president, however, should decide the extent to which he will provide such public justification as a matter of politics, not constitutional obligation. The president stands accountable to the electorate for his discharge of subordinate officials, not to Congress, which has no role in evaluating the propriety of removals absent allegations of an impeachable offense. So what if Attorney General Gonzales had followed President Cleveland’s lead? What if he had scrapped the insulting performance-based explanation for dumping those U.S. attorneys and relied instead on the importance of the president’s constitutionally based removal authority? Would Congress still have pushed hard for more documents and testimony from top Justice officials? The answer might well be no. The imbroglio reveals, if nothing else, the growing political weakness of the administration.
Harold J. Krent is dean and professor of law at Chicago-Kent College of Law. He is the author of Presidential Powers (New York University Press, 2005).

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