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.
History supports the Court's conclusion. The first draft of the Judiciary Act of 1789 originally provided for the judicial appointment of district attorneys. Although the provision was ultimately changed by Congress, which authorized the President to appoint such attorneys, there is no evidence that the change was perceived as a matter of constitutional compulsion, rather than a pure policy choice. Indeed, the early functioning of United States attorneys - who received from the Secretary of State, not the Attorney General whatever little central direction they got - fails to substantiate any expectation that the President would provide some unifying supervision. As then-Judge Ruth Bader Ginsburg wrote: "Prosecution was decentralized during the federalist period, and it was conducted by district attorneys who were private practitioners employed by the United States on a fee-for-services basis."
Another piece substantiates the original understanding: Federal courts have always been regarded as having the power to appoint prosecutors to bring criminal contempt actions. This practice is an obvious breach of executive control over prosecution.
State evidence regarding the founding generation's likely perceptions regarding criminal prosecution and its constitutional status is both consistent and telling. States had prosecutors, and state practice in the late eighteenth century shows that there was no late eighteenth century expectation that criminal prosecution was an inherently executive function, to be conducted solely by gubernatorial appointees and under exclusive executive supervision. Indeed, there appear at least five states in which the Attorney General was an appointee of either the legislature or the courts.
None of this is surprising. In England, criminal prosecution was still largely a private function. There was a degree, now enlarged, to which the English Attorney-General could supervise criminal prosecutions. In making prosecutorial decisions, however, the Attorney-General was regarded as an independent officer, personally accountable to Parliament, whose judgments were not controlled by the Crown or by the Prime Minister. There was no reason for Americans to revise the constitutional assumptions underlying this system.
It may be objected, of course, that a new President ought to be able to bring a new team and that some measure of political allegiance to the incumbent Administration is not inappropriate. If Congress is so persuaded, here is a cake you can eat and still have. Section 541(c) of Title 28, United States Code, now reads: "Each United States attorney is subject to removal by the President." It should be amended to read: "Each United States attorney is subject to removal by the President, provided that no President may remove a United States attorney whom he or she has appointed, except for malfeasance, neglect of office, or incapacity to fulfill the duties of the position." Case closed.