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Thread: Key Witnesses to Be Interviewed in Prosecutor Firings

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    Re: Key Witnesses to Be Interviewed in Prosecutor Firings

    Okay, NYU, here's the Constitution's description of the President's power:

    Section 2 - Civilian Power over Military, Cabinet, Pardon Power, Appointments

    The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices, and he shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.

    He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

    The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

    The United States Constitution - The U.S. Constitution Online - USConstitution.net
    I don't see any power to fire for no cause in the Constitution.

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    Re: Key Witnesses to Be Interviewed in Prosecutor Firings

    Quote Originally Posted by aps View Post
    Okay, NYU, here's the Constitution's description of the President's power:



    I don't see any power to fire for no cause in the Constitution.
    Despite Carter’s noble intent, Bell refused. In a little-known memorandum to the president dated April 11, 1977, he explained why. Any law that restricted the president’s power to remove the attorney general – and, by inference, to fire any U.S. attorney – would likely be found unconstitutional. The president, Bell reasoned, is held accountable for the actions of the executive branch in its entirety, including the Justice Department; he must be free to establish policy and define priorities, even in the legal arena. “Because laws are not self-executing, their enforcement obviously cannot be separated from policy considerations,” Bell wrote.

    Carter argued that the attorney general is different from other Cabinet officers. The job entails dual responsibilities: carrying forward White House policies like any other Cabinet official, and representing the law of the United States, whether it coincides with the president’s policies or not. Bell agreed, but he found that insufficient to justify separating the attorney general and subordinate U.S. attorneys from presidential direction.

    Bell anchored his reasoning on Supreme Court precedent, especially Chief Justice William Howard Taft’s opinion in Myers vs. United States (1926).

    Congress enacts different types of laws, the chief justice opined. Some laws require close supervision by the president, while others draw upon the expertise found within the specific agencies of government. Much law, however, generally empowers the executive, and when subordinates perform these functions, “they are exercising not their own but [the president’s] discretion,” the court said. “Each head of a department is and must be the president’s alter ego in the matters of that department where the president is required by law to exercise authority.”

    The court’s analysis did not deny the unique nature of the Justice Department. Indeed, Taft acknowledged that there may be duties that require evenhandedness from executive officers, “the discharge of which the president cannot in a particular case properly influence or control.”
    The president's right to fire - Los Angeles Times

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    Re: Key Witnesses to Be Interviewed in Prosecutor Firings

    Quote Originally Posted by aps View Post
    I don't know what to make of this article. The report and the article I posted are in agreement with each other and they make sense to me. I know I have read or heard somewhere that the only absolute power the president has (a power that cannot be questioned) is the power to pardon. Executive privilege has its limits. Why wouldn't this power (the power to fire) have its limits?
    Quote Originally Posted by aps View Post
    Okay, NYU, here's the Constitution's description of the President's power:

    I don't see any power to fire for no cause in the Constitution.
    The only absolute Constitutional power that the president has is the power to pardon. The power to hire and fire US Attorneys is statutory, not Constitutional.

    28 U.S.C. 541


    (a) The President shall appoint, by and with the advice and consent of the Senate, a United States attorney for each judicial district.
    (b) Each United States attorney shall be appointed for a term of four years. On the expiration of his term, a United States attorney shall continue to perform the duties of his office until his successor is appointed and qualifies.
    (c) Each United States attorney is subject to removal by the President

    The authority to remove USA's is not absolute in the sense that it cannot be changed except by Constitutional amendment, but is absolute in the sense that the statute as it stands provides for it to be absolute. If Congress is particularly concerned about it, it can amend the statute to place some limits on the removal power.

    That's actually the suggestion made in a recent LR article I just found:

    HIGHLIGHT: The forced mid-term resignations of nine U.S. Attorneys was an unprecedented event in American history. Nearly one year after the administration executed the removals, the House Judiciary Committee was still reviewing and publicizing emails, memoranda, and other documents in an effort to understand how the firings were effectuated. This Note examines many of those documents and concludes that the removals were likely carried out for partisan reasons. It then draws on the Constitution, Supreme Court precedent, and separation of powers principles to argue that Congress is constitutionally empowered to enact removal limitations for inferior officers such as U.S. Attorneys so long as those limitations do not impermissibly infringe on the president's Article II authority or result in congressional aggrandizement. Because of the partisan nature of the attorneys' removals, this Note argues that Congress should consider such legislation to limit the president's removal of U.S. Attorneys. In considering the constitutionality and efficacy of a potential statute, this Note examines three previous pieces of legislation on which such removal limitations could be modeled before proposing a fourth, hybrid statute that would emphasize the separation of powers values of balance and accountability in barring "partisan" removals of U.S. Attorneys. The Note concludes by claiming that the framework that the Supreme Court created in McDonnell Douglas v. Green can supply a useful analog to manage the fact-intensive probe into whether a removal was impermissibly "partisan" under the proposed statute or merely a typical, "political" removal, which any removal statute must likely allow to meet constitutional muster.
    107 Mich. L. Rev. 317

    Even this author, no fan of the Bush administration, concludes that the firings were completely permissible under the statute as it exists.
    People sleep peaceably in their beds at night only because rough men stand ready to do violence on their behalf.

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    Re: Key Witnesses to Be Interviewed in Prosecutor Firings

    Quote Originally Posted by MrVicchio View Post
    The author of your article is the same author as NYU's article. He just so happen to work for Reagan and H. Bush. Sorry, but my article, written by a law professor, is in synch with the finding made in the Department of Justice investigation. Sorry, but I'm not buying it.

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    Re: Key Witnesses to Be Interviewed in Prosecutor Firings

    Quote Originally Posted by aps View Post
    The author of your article is the same author as NYU's article. He just so happen to work for Reagan and H. Bush. Sorry, but my article, written by a law professor, is in synch with the finding made in the Department of Justice investigation. Sorry, but I'm not buying it.
    FWIW, that author is also a law prof. And I wasn't going to bring it up, but if we're talking bias, your prof also writes for the Huffington Post.
    People sleep peaceably in their beds at night only because rough men stand ready to do violence on their behalf.

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    Re: Key Witnesses to Be Interviewed in Prosecutor Firings

    Quote Originally Posted by aps View Post
    The author of your article is the same author as NYU's article. He just so happen to work for Reagan and H. Bush. Sorry, but my article, written by a law professor, is in synch with the finding made in the Department of Justice investigation. Sorry, but I'm not buying it.
    Are you also "not buying" the US code of laws posted?

    US CODE: Title 28,541. United States attorneys
    From the ashes.

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    Re: Key Witnesses to Be Interviewed in Prosecutor Firings

    Quote Originally Posted by Phoenix View Post
    Are you also "not buying" the US code of laws posted?

    US CODE: Title 28,541. United States attorneys
    I am buying the US Code. Where does it say,

    (c) Each United States attorney is subject to removal by the President for any proper or improper reason.

    ???

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    Re: Key Witnesses to Be Interviewed in Prosecutor Firings

    Quote Originally Posted by RightinNYC View Post
    FWIW, that author is also a law prof. And I wasn't going to bring it up, but if we're talking bias, your prof also writes for the Huffington Post.
    LOL!

    You definitely have a legal basis for your assertion, and I just read: Parsons v. United States, 167 U.S. 324 (1897), which is sited on the DOJ website addressing US Attorneys and the President's ability to fire. USAM 3-2.000 United States Attorneys, AUSAs, Special Assistants, and the AGAC

    Having read this, I will accept whatever conclusion Dennehy comes to in her investigation. Seriously.

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    Re: Key Witnesses to Be Interviewed in Prosecutor Firings

    Lastly, NYU, tell me the following:

    (1) Why you think Gonzales, Sampson, and others resigned during Congress's investigation of these firings.

    (2) Why the Inspector General stated the following in his report:

    In sum, we believe that the process used to remove the nine U.S. Attorneys in 2006 was fundamentally flawed. While Presidential appointees can be removed for any reason or for no reason, as long as it is not an illegal or improper reason, Department officials publicly justified the removals as the result of an evaluation that sought to replace underperforming U.S. Attorneys. In fact, we determined that the process implemented largely by Kyle Sampson, Chief of Staff to the Attorney General, was unsystematic and arbitrary, with little oversight by the Attorney General, the Deputy Attorney General, or any other senior Department official. In choosing which U.S. Attorneys to remove, Sampson did not adequately consult with the Department officials most knowledgeable about their performance, or even examine formal evaluations of each U.S. Attorney’s Office, despite his representations to the contrary.

    OIG Special Report: An Investigation into the Removal of Nine U.S. Attorneys in 2006
    (3) Why Mukasey referred this for an investigation if the President has the absolute authority to fire?

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    Re: Key Witnesses to Be Interviewed in Prosecutor Firings

    Quote Originally Posted by RightinNYC View Post
    The point of that anecdote wasn't to say "Oh, well Carter got away with it, so Bush should too." It was to highlight the fact that nobody questioned Carter because it was (and remains) well settled law that the president's power to fire US Attorneys is absolute.

    What happened with Carter was completely legal, despite how much it might seem improper or wrong. The same goes for the current situation.
    Independent Thinker knew that you weren't making that point...this is his M.O., though...taking clear, plainly worded statements and cortorting them into wild positions that never could have reasonable distilled from the original comment.

    Those whining and carping about Bush here cannot offer any reasonable explanation regarding the Carter situation because the current situation is motivated purely and only by political grievance and not by an interest in determining the proper exercise of political power.

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