Orin Kerr's thoughtful caution toward expressing definitive views on the political brohaha over the firing of 8 U.S. Attorneys strikes me as just right: "Parts of it are obviously very troubling . . . . [yet] several parts of the story seem overblown."
But it's hard to find fault with Professor Bainbridge's thoughts:
[I]t strikes me that's there is big difference between putting political constraints on a prosecutor's general exercise of his or her prosecutorial discretion and allowing political calculations to factor into specific decisions. For example, I think it is perfectly appropriate for the President and Attorney General to set law enforcement priorities. Say, the Attorney General says pornography is a priority. US Attorneys who fail to enforce that priority appropriately can be fired. Contra what some in the blogosphere seem to believe, US Attorneys serve at the pleasure of the President and may be terminated either with or without cause at any time.
In contrast, investigations and prosecutions aimed at furthering a prosecutor's own career or those that are aimed at individuals or entities because of their political status are improper.
I'll add for your consideration today's editorial in the Wall Street Journal, which offers a mix of on-the-money analysis with more than a touch of regrettable "but Clinton did it too"-ism:
As everyone once knew but has tried to forget, Mr. Hubbell was a former partner of Mrs. Clinton at the Rose Law Firm in Little Rock who later went to jail for mail fraud and tax evasion. He was also Bill and Hillary Clinton's choice as Associate Attorney General in the Justice Department when Janet Reno, his nominal superior, simultaneously fired all 93 U.S. Attorneys in March 1993. Ms. Reno -- or Mr. Hubbell -- gave them 10 days to move out of their offices.
This sort of argument just doesn't resonate with me. While President Clinton was politically gifted and, in my view, a generally effective President, it's undeniable that his presidency had more than whiff of improper politicking, including the indefensible last-day pardons of Carlos Vignali and Marc Rich. That President Clinton's mass firing of 93 U.S. Attorneys might, as the editorial goes on to argue, have impacted investigations of persons closely associated with him, is suspicious, but that doesn't make the Bush Administration firings any less suspicious. Indeed, I could see how targeting eight U.S. Attorneys might actually be worse than firing all of them. . . .
In any event, the WSJ goes on to note:
The supposed scandal this week is that Mr. Bush had been informed last fall that some U.S. Attorneys had been less than vigorous in pursuing voter-fraud cases and that the President had made the point to Attorney General Albert Gonzales. Voter fraud strikes at the heart of democratic institutions, and it was entirely appropriate for Mr. Bush -- or any President -- to insist that his appointees act energetically against it.
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As for some of the other fired Attorneys, at least one of their dismissals seemed to owe to differences with the Administration about the death penalty, another to questions about the Attorney's managerial skills.
Maybe that's right, but this doesn't seem to be a very difficult concept to articulate. Why is the Bush Administration unable to do so?