Visiting Fellow John Yoo

Once again, the Bush administration has shot itself in the foot. If the Justice Department had just removed individual U.S. attorneys one by one, just for a change, no controversy would have erupted. Since the very beginnings of the Republic, presidents have always had the constitutional right to remove their political appointees, for any reason or no reason at all.

Reading emails filled with what passes for colorful language inside the Beltway ("loyal Bushies"), watching Karl Rove squirm before a congressional committee and placing bets on Attorney General Alberto Gonzales's tenure in office is great political sport. Democrats in Congress look even madder now than when they were complaining about President Bush's "excesses" in the war on terror.

They may even claim the scalp or two of a loyal Bushie. It seems like senseless partisanship, but it's Washington so what else is new? But much more than partisan circuses is at stake. Those who toss more fuel onto the fire threaten the nation's unifying force in law enforcement and well-run government--the president's core constitutional prerogative to fire his subordinates.

No doubt efforts to insulate U.S. attorneys from presidential control will soon emerge. At first glance, this seems attractive--U.S. attorneys are responsible for all criminal and civil actions involving the federal government within their districts. No one in this country wants the Justice Department to manipulate or tamper with cases for partisan gain.

But presidents need to have their own people in place in order to promote a consistent, national agenda. While U.S. attorneys can gather better information on, and react more swiftly to, local conditions, the Constitution still gives the president the responsibility to govern the activities of all U.S. officials. As James Madison said in 1789 in the first Congress, "no power could be more completely executive than that of appointing, inspecting and controlling those who had the immediate administration of the laws." Ever since, the Supreme Court has recognized that the power to remove is the power to control.

The president has no constitutional authority to order executive branch officials to obey his policies, except by removing them. If independence rules, the defense secretary could double the surge of troops into Baghdad to end the fighting there, the secretary of state could settle the Korean nuclear crisis on easier terms, and the attorney general could stop bringing drug trafficking cases if he disagreed with the war on drugs.

Critics want to insulate U.S. attorneys from political control by the president. Some have proposed over the years that the attorney general either be elected or chosen through some "neutral" non-political process. But how do you guarantee "neutrality"? Our Constitution's well-tempered system of checks and balances already does that quite well. Presidents are elected because of their political preferences and are expected to manage the executive branch accordingly. Congressmen do the same. Since when has a Democratic congressman, to be neutral and fair, had to hire Republicans on his staff?

Ultimately, the Constitution vests the president, not the attorney general or U.S. attorneys, with the responsibility to "take Care that the Laws be faithfully executed." Presidents, assisted by their attorneys general, must make the basic prosecutorial decisions about what resources to spend, and on which prosecutions--like getting criminals off the streets instead of setting perjury traps for White House aides. A president might decide that bringing more immigration cases nationwide will advance the public interest. But without the removal power he cannot force reluctant U.S. attorneys to follow such priorities that might be locally unpopular. Prosecutors tasked to go forth and prosecute with no guidance from above often lose perspective on the costs or the benefits to the whole nation of their choices.

Patrick Fitzgerald's pursuit of Scooter Libby shows us what happens when a prosecutor reports to no higher authority. He single-mindedly persecuted Mr. Libby, at great taxpayer expense, without any sense of the damage caused to the workings of our government in wartime--and over a confused sequence of misstatements later characterized all too easily as "lies" about a crime that Mr. Fitzgerald found had not happened anyway.

If U.S. attorneys are all turned into special counsels to set their own uncontrolled agendas, the more bad prosecutions we will see. The recent Nifong Duke case is an example of an out of control prosecutor playing to the press to build his own political career. Executive control is simply good management, ensuring that U.S. attorneys don't succumb to competing pressures that take their eye off national goals.

Both political parties allowed the Independent Counsel statute to die after the Clinton/Lewinsky affair. Republicans and Democrats came to their senses and swore off the Watergate-era reform of uncontrolled prosecutors afflicted with tunnel vision. The nation decided to re-establish political supervision over prosecution. To insulate U.S. attorneys from "political" direction from Washington--an about-face--would wreak chaos on national policy.

Unless there are more clear facts of interference with prosecutors for partisan purposes, Mr. Gonzales should keep his job. His dismissal wouldn't placate the critics anyway, and probably only whet their appetite for more. The president is in the last two years of a second term. He is going to be playing defense on Justice issues now to the very end. His administration will surely be subjected to an endless round of Congressional subpoenas and investigations. All presidents, regardless of party, need an attorney general and U.S. attorneys who share, rather than ignore, their constitutional, legal and law-enforcement priorities. The Constitution requires no less.

John Yoo is a visiting scholar at AEI.