Bench Memos

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Re: Time to Go


There’s one point in NRO’s house editorial today (“Time to Go”) with which I vigorously disagree.  The editorial asserts that congressional Democrats “are within their rights to investigate” the firing of U.S. attorneys and “may yet turn up enough evidence to prove that some of the firings were improper violations of political norms.”  The premise underlying this assertion is apparently that Congress’s so-called oversight authority extends to possible “improper violations of political norms.”  That is not the case.


This essay on Slate by Walter Dellinger and Christopher H. Schroeder, both senior DOJ officials in the Clinton administration, properly states Congress’s role in investigating the controversy:


Whether prosecutors were dismissed to make way for new patronage appointments … is not a subject that warrants compelled public testimony. U.S. attorneys serve at the pleasure of the president. He can fire them all because they are not members of his political party. He can replace his own appointees to bring in fresh blood. He can replace those who are not carrying out the prosecutorial policies of his administration (greater emphasis on indecency cases, for example). He can dismiss a U.S. attorney to make room for a buddy of his chief political adviser. This may not be admirable management, but it’s not an act of wrongdoing that would justify intrusive investigative techniques.

There is one kind of wrongdoing, though, that would fall within an entirely different category: The replacement of one or more U.S. attorneys in order to impede or speed along particular criminal investigations for illegitimate reasons, such as the party affiliation of the person being investigated. There are two important things to be said about this charge: One is that if it happened it would be a deep and profound wrong. The other, deserving of equal emphasis, is that there is no firm basis for concluding that any such thing actually happened. So far, the basis for the suggestion consists of suspicious timing, scattered but troublesome e-mail references, and the skepticism generated by unpersuasive explanations for the dismissals. An additional complicating factor is the possibility, now common during investigations, that some wrongdoing could have occurred in response to the investigation itself.


The kind of wrongdoing that Dellinger and Schroeder identify as sufficient to warrant congressional investigation on this matter is unlawful obstruction of justice, not violation of political norms.  (My own judgment is that Dellinger and Schroeder understate the weakness of the evidence for such wrongdoing when they state merely that there is “no firm basis” to believe it occurred.  But, to their credit, they acknowledge that they “can’t say whether a plausible basis exists because that would require a familiarity with the facts that we just don’t have.”)


Unfortunately, DOJ’s bungling of the response to the controversy—including its hard-to-explain decision to make internal documents available—undercuts politically its ability to resist Congress’s further intrusions.


Tags: Whelan


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