The Sacked U.S. Attorneys: What's at Stake?

As the various deposed U.S. Attorneys testify before Congress today, a lot of people (including my erstwhile debate partner) have been asking if this is about anything other than an opportunity for democrats to give the administration yet another black eye.  One possibility is that some prosecutors were moved along in an effort to squelch corruption prosecutions, which of course would be a serious matter if true (in the case of Maryland, I'm somewhat dubious, since I know the replacement USA personally, and have little doubt that he would have pursued any meritorious corruption prosecution zealously, whoever its object).  There's something else here, though.  For me this is a battle over institutional norms, a subject I've written about a few times in other contexts.

 

The executive branch, and to a lesser extent Congress, both employ lots of high-ranking officials technically removable at will by their superiors, but whom we expect to act above politics.  The Solicitor General is the classic example: the norm of that office is that the SG must defend the laws of the United States, and give true counsel to the Supreme Court, whatever the views of the President with the power to remove her.  At OLC when I was there in 2001, there was a lot of talk that we had, or ought to have, a similar role. 

These officials are like quasi-independent agencies: they offer internal checks and balances within the executive, making delegations to the executive (to my mind inevitable in a government this size) more palatable.  For example, in addition to resisting purely political influences, officials with a strong sense of institutional mission are probably also more likely to resist efforts at rent-seeking by the constituencies they regulate.  Or would you prefer to see, say, a highly political Commissioner of the IRS?   Of course, you may find this account unpersuasive if you are (like, say, Dick Cheney or David Addington) a strong believer in the "unitary executive."

On that note, since 2000, we've seen lots of these institutional norms crumble.  Take Inspector Generals -- technically presidential appointees, of course, but once with a strong tradition of independence, and an expectation that nominees would be relatively apolitical.  No longer -- a great number of this administration's IG's have been former political operatives.  The Senate parliamentarian: technically an appointee of the majority leader, but traditionally expected to give objective rulings on senate procedures.  Frist quickly sacked the sitting parliamentarian when he proved intractable.  I could go on (science advisors...?).

So, for me this episode is an effort to halt what might well be a difficult-to-reverse slide away from norms of professionalism in federal prosecutors.  Some would say we've seen it already in the Civil Rights Division at DOJ.  To me it would be very unfortunate to see the same thing happen to the institution of the U.S. Attorney.