There Oughta Be A Law

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We’ll see what this next round of documents reveals, but the ball-moving development of today in the US Attorneys story is Adam Cohen’s piece on the Times Editorial Page. It plugs a big hole in the argument that this is a big deal story and not just, in the words of our Attorney General, “an overblown personnel matter.” Unfortunately, I’m not sure that I buy it.
The argument so far goes something like this:
1) The Bush administration fired eight US attorneys. 2) So what? Bill Clinton fired all 93 US attorneys almost the minute he took office. 3) But it’s much more suspicious to fire just a few in the middle of your term than to clean house at the beginning. 4) Is it? Why is that? The Bushies considered firing all of the US attorneys at the start of Bush’s second term, but decided that would cause a political firestorm. Are you telling me they had it backward–that if he’d canned the whole lot, no one would have complained? 5) Well, maybe or maybe not. But these eight were Bush’s own appointees—most of them Republicans! 6) And you’re saying that’s more suspicious than if he’d fired eight—or 93—Democrats? What are you suspicious of, anyway? 7) Well, obviously, I’m suspicious that he fired them because he didn’t like what they were doing. 8) What were they doing? 9) Well, one of them had sent a Republican congressman to jail for acceping a bribe. A couple of them were opposed to capital punishment. A couple weren’t being vigorous enough for the administration in pursuit of obscenity. A couple were too lax about prosecuting illegal aliens. One was ignoring evidence of voter fraud, and another had let a Democrat become governor by failing to demand a recount of a close, contested election. Once again, all this is as the administration saw it. 9) Aren’t these all policy questions? And doesn’t a president have the right to appoint US Attorneys who agree with him on policy matters? 10) It’s not a policy question if a US Attorney is fired in order to squelch a criminal investigation of some kind. That’s obstruction of justice. 11) Do you have any evidence that any of these eight were fired in order to squelch an investigation? 12) Did you read Adam Cohen in the Times this morning?

The trouble with this scandal, as a scandal, has been that—if you’re going to be honest (and why not?)—there is not only nothing illegal about the president firing a US attorney. There is nothing even really wrong with it. Even if it’s just to make room for a crony of Karl Rove. And I’m sorry, but I just can’t see how firing eight can be heinous but firing 93 is perfectly OK. Nor can I see—if the issue is neutral justice—how firing someone from your own party is worse than firing someone from the other party. Much of the commentary on this story has seemed disingenuous about this: breathless revelations that the White House was involved in the decision, that it may have been (gasp!) political, and so on.

An editorial in the Washington Post last Thursday, for example, avoids disingenuousness—but only at the price of utter confusion. It dismisses the Clinton administration precedent as “a red herring, not a useful comparison,” but fails to explain why. The editorial scrupulously points out that one of the US attorneys fired by Clinton was weeks away from indicting a powerful Democratic congressman—a closer connection to a more important investigation than anything now at stake. The Post concedes that Clinton’s mass firing was “unprecedented,” and “unprecedented” is the toughest adjective the Post can bring itself to apply to the recent Bush firings, too. Then it says, “But unprecedented doesn’t equal wrong.” It acknowledges that a “president…is entitled to have..prosecutors committed to his law enforcement priorities,” and is honest enough to include concerns over issues like immigration and obscenity cases as falling in this permissible-motive category. Then it runs out of steam, notes accurately that the Bushies have been lying up a storm, says this is another reason that the Clinton episode is a bad comparison, and stops.

Cohen cuts through all this, and offers several grounds for at least suspecting that the firings were part of an illegal obstruction of justice. Read it for yourself and see if you buy it. And try to be honest: would you buy the argument if it was being applied against a Democratic president? I’m afraid I wouldn’t, absent more evidence than I believe is there.

I’ve never met Adam Cohen, formerly (alas) of Time, but I read everything he writes. He is a terrific original thinker. But he has one blind spot: he loves the law, and tends to believe that anything he doesn’t like must be illegal. When he was in law school, he wrote an article in the Harvard Law Review arguing that the Civil Rights Act should be interpreted to forbid discrimination on the basis of physical beauty. “Facial discrimination,” he called it. That one didn’t fly either.

So what’s my bottom line here? What about that belatedly controversial little provision snuck into the Patriot Act? Why do I think the Bushies have been lying so vigorously if they aren’t trying to hide something? Maybe you don’t care what I think, which is fine. If you do, check back this evening. My masters and mistresses at Time told me to spread these things out.