US Attorney Firings Called 'Legal' But 'Improper'

By Nathan Burchfiel | July 7, 2008 | 8:32pm EDT

( - As top Justice Department officials prepare to testify before congressional committees over the firing of eight U.S. attorneys, legal experts on Tuesday debated whether the Bush administration did anything wrong in letting them go.

"Subject to one potential qualification, there are no limits on presidential authority to remove United States attorneys," Andrew McCarthy, director of the Center for Law and Counterterrorism at the Foundation for Defense of Democracies, said during a discussion in Washington, D.C.

McCarthy said the only exception to the president's authority to fire U.S. attorneys would be if the move was motivated by a desire to commit or cover up corruption. He said he was confused about the controversy surrounding the White House's involvement in the removal of the U.S. attorneys in 2006.

"The removal or selection of United States attorneys is essentially a White House decision," McCarthy argued. "In fact, if anybody other than the president is making the decision that would be more problematic than any alternative I can think of."

The White House and the Justice Department have come under fire from Democrats over the firings. While the Bush administration has offered several reasons for their release, some of the former U.S. attorneys allege that they were removed from their posts because they were investigating Republicans.

Mark Agrast, a senior fellow at the Center for American Progress, said that while the White House had the legal right to fire the attorneys, it was an unwise decision. "It can be legal and yet improper and unseemly for the president to fire a United States attorney under some circumstances," Agrast said.

"The possibility ... that the failure of a U.S. attorney to prosecute particular people in the other party or insistence on carrying out prosecutions of people within the president's own party may very well have been the reason for some of the dismissals," he said.

Agrast suggested the firings may have been illegal "if it turns out that these things were done to obstruct prosecutions or intimidate prosecutors" - even though the U.S. attorneys serve at the president's pleasure as political appointees.

Other analysts criticized both congressional eagerness to investigate the firings and the Bush administration's handling of the controversy.

"We have hyper-exaggerated notion of what congressional oversight authority is," former Deputy Assistant Attorney General Edward Whelan said, describing the entire situation as "a blunder more than anything else."

But Jonathan Turley, a professor at the George Washington University School of Law, praised Congress' desire to investigate, noting that "the engine of the Madisonian democracy is the legislative branch."

Turley described the kerfuffle as "a controversy brought forth by perfectly moronic decisions by the administration" and said Congress has "a pretty good [legal] footing" to demand on-the-record testimony from Bush's aides.

The administration contends that the White House's involvement in the affair is a matter of "executive privilege," which protects executive branch officials from revealing the nature of their advice to the president.

President Bush has offered to let White House adviser Karl Rove and former White House counsel Harriet Miers discuss their involvement in the firings with congressional committees on the condition they not be under oath and that transcripts not be kept.

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