As it reaches the end-game stage, it may finally be dawning on Democrats, who continue mulishly pursuing the “scandal” over the firing of U.S. attorneys, that the issue is political, not legal — something I’ve repeatedly argued (see, e.g., here and here), as have others.
U.S. attorneys have no power of their own. The power they exercise is executive power, which the Constitution vests entirely in the president. They are his delegates, not independent actors, and he may fire them for any reason or no reason. If he fires them for a stupid reason, that is a political blunder for which the president and his Justice Department will be politically damaged — as has certainly happened here. But it is not a crime.
Congressional Democrats have tried to investigate it as if it were a crime. They’ve violated constitutional separation-of-powers principles by issuing subpoenas to some of the president’s top aides. The White House wisely declined to comply, and Congress’s next step is to try to hold them in contempt of Congress.
Only there’s a small problem. The Constitution vests Congress with no authority to prosecute. That is an executive power. Congress can say “prosecute” all it wants. It needs a U.S. attorney to do it. But the U.S. attorneys work for the president. Flexing its constitutional muscles, the executive branch is not going to prosecute any contempt urged by Congress. Checkmate. Like this whole theater from the start, the issuance of subpoenas and the chatter about contempt is political, not legal.
The wiser Democrats already see that. As the Washington Post reports this morning, it’s exactly the position taken by the Clinton administration’s Justice Department.
This controversy has been a political coup for Democrats. They’ve exposed some pretty embarrassing details about the day-to-day operation of the Justice Department. But there are only so many points to be wrung from every political drama, and this one has run its course. Time to stop wasting time pretending this is a criminal matter.