By Peter M. Shane, the Jacob E. Davis and Jacob E. Davis II Chair in Law at Ohio State University & author of Madison's Nightmare: How Executive Power Threatens American Democracy (University of Chicago, 2009)
Yesterday's revelations about Karl Rove's hand in the firing of U.S. attorneys make clear that the time has come to protect U.S. attorneys, by statute, from at-will discharge. Like other quasi-independent law enforcers - members, for example, of the Federal Trade Commission - they should be subject to discharge only for good cause, such as malfeasance, neglect of office or incapacity. The rule of law depends on the public's confidence in the evenhanded administration of justice. The Bush White House proved that such confidence may well be unwarranted under the current system.
It has long been executive branch folklore that the President is constitutionally entitled to fire U.S. attorneys at will. This is not true. The Supreme Court correctly held in Morrison v. Olson that Congress is entitled to insulate officers of the United States from at-will political discharge unless that insulation would disable the President from executing his own constitutional functions.
As revealed by Morrison v. Olson - and a cursory review of U.S. history - the President has no Article II entitlement to policy control over the federal prosecutorial function. If he did, then Morrison v. Olson, which upheld statutory provisions limiting the President's capacity to fire independent counsel, would have had to come out the other way.