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A Decision The President Alone Must Justify

Update: I wanted to welcome Anonymous Liberal to C&L. He blogged with Glenn Greenwald and will offer us some solid legal opinions from time to tim

Update: I wanted to welcome Anonymous Liberal to C&L. He blogged with Glenn Greenwald and will offer us some solid legal opinions from time to time... John Amato

President Bush is in a real bind. The circumstances surrounding the firing of eight United States Attorneys reek so badly of crass partisan politics that the President's advisers are trying very hard to distance him as much as possible from the decision-making process. Hence, this from Tony Snow:

MR. SNOW: The President has no recollection of this ever being raised with him. . . .

Q Just to follow, did you say, again for the record, that the President has no recollection of ever being asked about any of this?

MR. SNOW: Yes, the removal -- yes, that is correct.

Indeed, Snow went as far as to assert that this was "a decision that was made at the U.S. Department of Justice."

Here's the problem, though. As Marty Lederman points out, the relevant statute--28 U.S.C. 541(c)--vests the power to remove U.S. Attorneys with the president ("Each United States attorney is subject to removal by the President.") As we've repeatedly been told, U.S. Attorneys serve at the pleasure of the President--not the pleasure of the Attorney General (and certainly not the pleasure of the Attorney General's chief of staff). The decision to fire a U.S. Attorney--much less eight of them--is unquestionably one for the president to make, so if President Bush was truly out of the loop on this, that's a problem in and of itself.

That level of absenteeism is inconsistent with statutory requirements and with any reasonable standards of good governance. This is far too important a decision to be delegated to subordinates, even if such delegation were legally permissible.

Moreover, as CNN's Ed Henry pointed out to Tony Snow in his press briefing on Wednesday, if the President wasn't involved in the decision-making process here, how is executive privilege even relevant?

And, perhaps most importantly, if President Bush was not involved in the decision-making process, how is it that he is so confident the right decisions were made? Has he subsequently reviewed and ratified these firing decisions? If not, doesn't he have both a statutory and moral obligation to do so, especially if he's going to allow his subordinates to tarnish the reputations of these prosecutors by continuing to claim that their dismissals were "performance-related"? And if the President has reviewed and ratified these decisions, is it really asking too much that he go through them one by one and explain why they were the right decisions from his perspective? Putting aside for a moment the American people's right to know, doesn't the President owe at least that much to the fired prosecutors themselves, all of whom devoted four years of their lives to his administration only to be dismissed without explanation and then publicly dissed?

Though mainstream journalists were slow to recognize the significance of this story, they have since done some admirable work and have generally been asking the right questions. What they need to do a better job of, however, is pressing the President to own up to his role and his responsibilities in this matter. Whether or not the president was actually involved in the deliberations that resulted in the firing of these prosecutors, it is clear that he should have been. This was ultimately his call to make, and he's the one who needs to justify it, even if his knowledge of the matter is entirely after the fact. It's not enough to just point a finger at the Justice Department and claim that they made the call. Given the questionable circumstances of these firings, the President has, at the very least, a responsibility to educate himself enough on the merits of these decisions to determine whether they were good ones. Anything less is a complete dereliction of duty.

Journalists need to force the President to own up to these decisions, to defend them substantively and not just procedurally. Did Carol Lam deserve to be fired, Mr. President? If so, why? How about David Iglesias, John McKay, and Daniel Bogden? This is what the American people want to hear. The press can't continue to allow the President to claim that these dismissals were proper while distancing himself from the facts and the substantive justifications for them. By law, these decisions were the President's to make, and therefore he's the one who needs to explain to the American people (and to Congress) why they were legitimate and defensible actions, both procedurally and substantively. Until he does so, this scandal will (and should) continue to dog his administration.

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