Nothing improper? Examining constitutional limits, congressional action, Partisan motivation, and pretextual justification in the U.S. attorney removals

Michigan Law Review

Volumn 107, Issue 2, 2008, Pages 317-364

  Weiss, David C ^a  

^a NONE

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EID: 56349164318     PISSN: 00262234     EISSN: None     Source Type: Journal    
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References (557)

1. For a discussion of the Marston removal, see generally Selection and Removal of U.S. Attorneys: Hearing on H.R. 10514 Before the Subcomm. on Couris, Civil Liberties, and the Admin, of Justice of the H. Comm. on the Judiciary, 95th Cong. 103-14 (1978) [hereinafter House Marston Hearings];
2. Don Holt & Diane Camper, The Marston Affair, NEWSWEEK, Jan. 30, 1978, at 34.
3. FOX News Sunday with Chris Wallace (FOX News television broadcast Mar. 25, 2007) (transcript), available at http://www.foxnews.com/story/0, 2933,261049,00.html.
4. This Note uses the terms "fired," "dismissed," "removed," and "resigned" without distinction. The media embraced each term and, while the USAs did resign, there was little objection from the DOJ to the claim that they were fired. See, e.g., Continuing Investigation into the U.S. Attorneys Controversy: Hearing Before the Subcomm. on Commercial and Admin. Law of the H. Comm. on the Judiciary, 110th Cong. 26-28 (2007) [hereinafter Judiciary Subcomm. Continuing Investigation Hearings] (testimony of James Comey, former Deputy Att'y Gen., Dep't of Justice) (failing to object to repeated characterizations that the USAs were "fired"). The seven USAs who received the December 7 phone calls requesting their resignation were David Iglesias, New Mexico; John McKay, Western Washington; Margaret Chiara, Western Michigan; Daniel Bogden, Nevada;
5. Paul Charlton, Arizona; Kevin Ryan, Northern California; Carol Lam, Southern California. Richard B. Schmitt, U.S. attorney firings open new doors for the 9, L.A. TIMES, Dec. 9, 2007, at A20. In addition, H.E. "Bud" Cummins III, Eastern Arkansas, and Todd Graves, Western Missouri, were asked to resign earlier in 2006 as part of the same DOJ effort and are included as fired USAs in the media, congressional hearings, and this Note.
6. See, e.g., 153 CONG. REC. H5556 (2007).
7. See Mark Jurkowitz, The Scent of Scandal Makes Gonzales the Big Story, PEJ NEW COVERAGE INDEX, Mar. 18-23, 2007, http://www.journalism.org/node/4733 (noting that the USAs' firings were the most heavily covered story in print, television, and radio media in late March 2007).
8. See, e.g., John McKay, Train Wreck at the Justice Department: An Eyewitness Account, 31 SEATTLE U. L. REV. 265 (2008).
9. See, e.g., James Eisenstein, The U.S. Attorney Firings of 2006: Main Justice's Centralization Efforts in Historical Context, 31 SEATTLE U. L. REV. 219 (2008).
10. See, e.g., Laurie L. Levenson, Live and Learn: Depoliticizing the Interim Appointments of U.S. Attorneys, 31 SEATTLE U. L. REV 297 (2008).
11. See, e.g., Judiciary Subcomm. Continuing Investigation Hearings, supra note 4, at 7-41 (testimony of James Comey, former Deputy Att'y Gen., Dep't of Justice);
12. David C. Iglesias, Op-Ed., 'Cowboy up,'Alberto Gonzales, L.A. TIMES, May 23, 2007, at A21;
13. Harry Litman, Op-Ed., Guilty of politics, L.A. TIMES, Mar. 14, 2007, at A23.
14. See, e.g., Department of Justice Oversight: Hearing Before the S. Comm. on the Judiciary, 110th Cong. (Apr. 19, 2007) (statement of Sen. Arlen Specter);
15. Christopher S. Yoo et al., The Unitary Executive in the Modern Era, 1945-2004, 90 IOWA L. REV. 601 (2005).
16. U.S. CONST, art. II;
17. see Morrison v. Olson, 487 U.S. 654, 693-95 (1988);
18. Humphrey's Executor v. United States, 295 U.S 602, 626-28 (1935);
19. Myers v. United States, 272 U.S. 52, 119 (1926).
20. United States Department of Justice, Mission Statement, http://www.justice.gov/02organizations (last visited Aug. 22, 2008).
21. Berger v. United States, 295 U.S. 78, 88 (1935) ("The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all....").
22. See id.; Eisenstein, supra note 7, at 221-26;
23. Christian. M. Halliburton, The Constitutional and Statutory Framework Organizing the Office of the United States Attorney, 31 SEATTLE U. L. REV. 213 (2008);
24. Levenson, supra note 8, at 303-05. In addition to the statements of the DOJ and the Court, there are also normative reasons why one may desire such independence.
25. See Note, Government Counsel and Their Obligations, 12.1 HARV. L. REV. 1409, 1411, 1415-16 (2008) (arguing that, in their counseling context, government attorneys owe a primary duty to the president except in cases of conflict, when the duty to the public takes precedence).
26. Morrison, 487 U.S. at 711 (Scalia, J., dissenting).
27. See id.
28. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
29. See, e.g., Aaron Rutkoff, Inside the U.S. Attorneys Emails: Major Players and Themes, WALL ST. J. ONLINE, July 11, 2007, http://online.wsj.com/public/resources/documents/info- retro_DOJemails_070319.html; Talking Points Memo, U.S. Attorney Purge Timeline, http://www.talkingpointsmemo.com/usa-timeline.php (last visited Aug. 22, 2008).
30. See discussion infra Section. III.C.1.
31. See discussion infra Section III.A.
32. Email from Kyle Sampson, Deputy Chief of Staff & Counselor to the Att'y Gen., to Harriet Miers, White House Counsel (Mar. 2, 2005, 21:49 EST), available at http://judiciaty.house.gov/hearings/pdf/DOJDocsPt.10703.13. pdf, at OAG000000005-11;
33. see also supra note 4 (explaining that nine USAs were actually fired). Part I does not include a detailed account of the reasons behind each of the USA firings because the justifications for some of the removals are still unclear.
34. See Memorandum from John Conyers, Jr., Chairman, House Comm. on the Judiciary, to Members of the Comm. on the Judiciary (July 24, 2007), at 20-30 [hereinafter Conyers Memo], available at http://media. washingtonpost.com/wp-srv/politics/documents/contempt_memo_072407.pdf. This lack of information strengthens the argument that Congress should create a cause of action through which a USA could challenge her removal and bring transparency to the removal process.
35. See discussion infra Section. III.B.4 (evaluating the "informational" benefit of the legislation that this Note proposes).
36. Email from Kyle Sampson, Deputy Chief of Staff & Counselor to the Att'y Gen., to William Mercer, Acting Assoc. Att'y Gen. (Dec. 5, 2006, 20:51 EST), available at http://judiciaty.house.gov/hearings/pdf/DOJ. DocsPt2070313.pdf, at OAG000000056.
37. See id.
38. Email from Kyle Sampson, Deputy Chief of Staff & Counselor to the Att'y Gen., to David G. Leitch, Deputy White House Counsel (Jan. 9, 2005, 19:34 EST), available at http://online.wsj.com/public/resources/documents/ WSJ_5DOJ200703.13_pl.pdf. The subject line of the email was "RE: Questions from. Karl Rove [Deputy Chief of Staff]."
39. Id.
40. Id.
41. Dan Eggen & John Solomon, Firings Had Genesis in White House, WASH. POST, Mar. 13, 2007, at A1.
42. Email from Kyle Sampson, Deputy Chief of Staff & Counselor to the Att'y Gen., to Harriet Miers, White House Counsel (Mar. 2, 2005, 17:42 EST), available at http://judiciary.house.gov/hearings/pdf/DOJDocsR1070313.pdf, at OAG00000003.
43. Id. (explaining chart); email from Kyle Sampson, to Harriet Miers (Mar. 2, 2005, 21:49 EST), supra note 2.1 (containing chart).
44. Email from Kyle Sampson, Deputy Chief of Staff & Counselor to the Att'y Gen., to Susan Richmond, Assistant to the Att'y Gen. & Deputy White House Liaison (Apr. 29, 2004, 12:11 EST), available at http://judiciaty.house.gov/hearings/pdf/DOJ.DocsPt7-1070319.pdf, at OAG000000155.
45. Margaret Talev & Marisa Taylor, Rove was asked to fire U.S. attorney, MCCLATCHY NEWSPAPERS, Mar. 10, 2007, available at http://www.mcclatchydc.com/staff/margaret_talev/story/16356. html.
46. U.S.A. Patriot Improvement and Reauthorization Act of 2005, Pub. L. No. 109-177, § 502, 120 Stat. 191, 246 (2006) (amended 2007). 28 U.S.C. § 546 was subsequently returned to its pre-2006 form. Preserving United States Attorney Independence Act of 2007, Pub. L. 110-34, § 2,
47. Stat. 224, 224 (2007);
48. see also Levenson, supra note 8, at 320;
49. Amy Goldstein & Dan Eggen, Prosecutor Posts Go to Bush Insiders; Less Preference Shown for Locals, Senators' Choices, WASH. POST, Apr. 1, 2007, at A1.
50. See email from Monica Goodling, Dir. of Pub. Affairs, Dep't of Justice, to Kyle Sampson, Deputy Chief of Staff & Counselor to the Att'y Gen. (Sept. 13, 2006, 16:17 EST), available at http://judiciary.house. gov/hearings/pdf/DOJDocsPt40703.13.pdf, at OAG000000121-22. As Sampson noted in an email, the new powers would allow the DOJ to get "our preferred person appointed" with "far less deference to home-State Senators,"
51. id.;
52. however, after the controversy became a major media story, William Moschella, Principal Associate Deputy AG, claimed that he alone was responsible for requesting that the change be made to the Patriot Act, Margaret Talev & Marisa Taylor, Justice Dept. distances White House from firings of U.S. attorneys, MCCLATCHY NEWSPAPERS, Mar. 14, 2007, available at http://www.mcclatchydc.com/staff/marisa_taylor/story/15779. html.
53. Email from Kyle Sampson to Harriet Miers (Mar. 2, 2005, 21:49 EST), supra note 21. Sampson's list of potential removals included Chiara, Cummins, and Lam, but not Iglesias, Ryan, or Charlton.
54. Id.
55. Dan Eggen, Domenici Says He Contacted Prosecutor, WASH. POST. Mar. 5, 2007, at A1.
56. Peter Pae, Lewis Surfaces in Probe of Cunningham, L.A. TIMES, May 11, 2006, at A1.
57. Email from Kyle Sampson, Deputy Chief of Staff & Counselor to the Att'y Gen., to William Kelley, Deputy White House Counsel (May. 11, 2006, 11:36 EST), available at http://judiciary.house.gov/hearings/pdf/ DOJDocsPt3070313.pdf, at OAG000000022.
58. See letter from, nineteen members of Congress to Alberto Gonzales, Att'y Gen. (Oct. 20, 2005), available at http://online.wsj.com/public/ resources/documents/WSJ_DOJDocsPt1070319_p25-26.pdf.
59. See David Johnston, Ex-C.I.A. Official Indicted In Inquiry Into Contracts, N.Y. TIMES, Feb. 14, 2007, at A24. Due to Lam's investigation, Cunningham eventually plead guilty to accepting gifts valued at more than $2 million.
60. Id.
61. Letter from William E. Moschella, Assistant Att'y Gen., to Sen. Diane Feinstein (Aug. 23, 2006), available at http://www.talkingpointsmemo.com/ docs/doj-lam/?resultpage=1&.
62. See id.
63. Email from Scott Jennings, Special Assistant to the President & Deputy Political Advisor, to Monica Goodling, Dir. of Pub. Affairs, Dep't of Justice (June 20, 2006, 10:16 EST), available at http://www. talkingpointsmemo.com/docs/jennings-nm.
64. Email from Monica Goodling, Dir. of Public Affairs, Dep't of Justice, to Scott Jennings, Special Assistant to the President & Deputy Political Advisor, (June 20, 2006, 11:30 EST), available at http://www. talkingpointsmemo.com/docs/jennings-nm.
65. Email from Scott Jennings, Special Assistant to the President & Deputy Political Advisor, to Monica Goodling, Dir. of Pub. Affairs, Dep't of Justice (June 20, 2006, 11:42 EST), available at http://www. talkingpointsmemo.com/docs/jennings-nm.
66. Donna Leinwand & Kevin Johnson, Gonzales'deputy attorney to step down: Has testified 7 of 8 prosecutors fired for performance, USA TODAY, May 15, 2007, at 5A.
67. Warwick Sabin, End Around: Senators question U.S. attorney appointment, ARK. TIMES, Dec. 28, 2006.
68. Id.
69. A 261-vote margin separated the Democrat and Republican candidates. See Wash. Sec'y of State, 2004 Governor's Race, http://www.secstate.wa. gov/elections/2004gov_race.aspx (last visited Aug. 22, 2008).
70. Dan Eggen & Paul Kane, Prosecutors Say They Felt Pressured, Threatened, WASH. POST, Mar. 7, 2007, at A1. In addition to this contact, the Chairman of Washington's Republican Party, while in "regular" contact with Karl Rove regarding the election, contacted McKay regarding the investigation into voter fraud in the gubernatorial race that he hoped McKay would pursue more aggressively.
71. David Bowermaster, GOP Chair called McKay about '04 election, SEATTLE TIMES, Mar. 14, 2007, at A1. Washington businessman and Republican contributor Tom McCabe also made "repeated" calls to the White House asking that McKay be fired for failing to adequately investigate the alleged voter fraud.
72. David Bowermaster, McKay "stunned" by report on Bush, SEATTLE TIMES, Mar. 13, 2007, at A9.
73. Amy Goldstein & Dan Eggen, Renzi Aide Called U.S. Attorney to Ask About Probe, WASH. POST. Apr. 26, 2007, at A4.
74. Id.
75. In September, the list of USAs to be fired included all of the eventually fired attorneys except Iglesias and Ryan; Sampson urged that, "as a matter of Administration policy, we utilize the new statutory provisions that authorize the AG to make USA appointments." Email from Kyle Sampson, Deputy Chief of Staff & Counselor to the Att'y Gen., to Harriet Miers, White House Counsel (Sep. 13, 2006, 16:25 EST), available at http://judiciary.house. gov/hearings/pdf/DOJDocsPt2070313.pdf, at OAG000000032.
76. Eggen & Kane, supra note 48.
77. In addition, William Kelley asked McKay to explain "'why Republicans in the state of Washington would be angry with [him.].'" R. Jeffrey Smith, Ex-Prosecutor Says He Faced Partisan Questions Before Bring, WASH. POST, Mar. 26, 2007, at A3.
78. Iglesias testified that Congresswoman Heather Wilson and Senator Domenici contacted him to inquire about his voter-fraud and corruption probe of Democrats in New Mexico relating to possible kickbacks. Eggen, supra note 34. Wilson was in the middle of a reelection campaign that she would win by just 861 votes.
79. See New Mexico Sec'y of State, Canvass of Returns of General Election Held on November 7, 2006, http://www.sos.state.nm.us/06Gen.Results/ Statewide.pdf, at 1. Iglesias stated that he felt "leaned on" and "sickened" by the calls, stating that Wilson asked him, "'[w]hat can you tell me about sealed indictments'" and that when he was unresponsive, Wilson became upset and ended the phone call.
80. Eggen & Kane, supra note 48. Approximately ten days after the call from Wilson, Iglesias stated that he received a call at his home from. Domenici who asked him if the kickback charges were "going to be filed before November."
81. Id. However, Domenici claimed that " 'at no time in that conversation or any other conversation with. Mr. Iglesias did I ever tell him. what course of action I thought he should take on any legal matter. I have never pressured him nor threatened him. in any way.' "
82. Eggen, supra note 34. Wilson similarly claimed that she "'did not ask about the timing of any indictments and [she] did not tell Mr. Iglesias what course of action [she] thought he should take or pressure him in any way.'"
83. Paul Kane & Dan Eggen, Second Lawmaker Contacted Prosecutor, WASH. POST., Mar. 6, 2007, at A1.
84. Eggen & Solomon, supra note 26.
85. Dan Eggen & Paul Kane, Ex-Aide Contradicts Gonzales on Firings, WASH. POST, Mar. 30, 2007, at A1.
86. See CQ Transcripts Wire, Transcript: Gonzales Testifies Before Senate Panel, WASHINGTONPOST.COM, Apr. 19, 2007, http://www.washingtonpost.com/wp-dyn/content/article/2007/04/19/ AR2007041902035_pf.html;
87. Letter from Senator Patrick Leahy, Chairman, S. Comm. on the Judiciary, to Glenn A. Fine, Inspector Gen., Dep't Justice (Aug. 16, 2007), available at http:// leahy.senate.gov/press/200708/8-16- 07%20PJL%20ltr%20to%20Glenn%20Fine-AG.pdf;
88. email from Kyle Sampson, Deputy Chief of Staff & Counselor to the Att'y Gen., to Andrew Beach (Nov. 21, 2006, 18:49 EST), available at http://judiciary.house.gov/hearings/pdf/OAG878-914.pdf, at OAG000000878 (inviting Gonzales to attend the meeting).
89. In discussing possible political fallout from, the firings and the communications strategy to deal with it, Scolinos wrote Martin: "The one common link here is that three of them are along the southern border so you could make the connection that DOJ is unhappy with the immigration prosecution numbers in those districts." Email from Tasia Scolinos, Dir. of Public Affairs, Dep't of Justice, to Catherine Martin, Deputy Assistant to the President & Deputy Commc'ns Dir. for Policy and Planning, White House Counsel's Office (Nov. 21, 2006, 13:20 EST), available at http://online.wsj.com/public/resources/documents/WSJ_onecommonlink-email-p5-6. pdf, at OPA000000005.
90. Eggen & Solomon, supra note 26. According to Iglesias, when he asked Battle why he was being asked to resign, Battle responded, " 'I don't know and I don't want to know.'" Questions from Subcommittee Chair Linda Sánchez for David Iglesias, H. Comm. on the Judiciary, http://judiciary.house.gov/Media/PDFS/Chair-Iglesias070430.pdf. According to Bogden, after he was told to resign, he contacted Associate AG Mercer to find out why he was being fired, and that Mercer told him. that the administration had a short, two-year window in which to provide more Republicans with the opportunity to have been USAs so that more Republicans would make strong candidates for the Federal bench and future political positions. Questions from Subcommittee Chair Linda Sanchez for Daniel Bogden, H. Comm. on the Judiciary, http://judiciary.house.gov/Media/PDFS/sanchezQnA070430.pdf.
91. Press Release, Office of U.S. Senator Dianne Feinstein, Senators Feinstein, Leahy, Pryor to Fight Administration's Effort to Circumvent Senate Confirmation Process for U.S. Attorneys (Jan. 11, 2007), available at http://feinstein.senate.gov/public/index.cfm?FuseAction=NewsRoom. PressReleases&ContentRecord_id-18a696d7-7e9c-9af9-7a2b-397a786a69fc& Region_id=&Issue_id=.
92. Dan Eggen, Prosecutor Firings Not Political, Gonzales Says, WASH. POST, Jan.. 19, 2007, at A2.
93. Marisa Taylor, Official denies prosecutors were ousted for political reasons, MCCLATCHY NEWSPAPERS, Feb. 6, 2007, available at http://www.mcclatchydc.com/staff/marisa_taylor/story/15563. html. McNulty testified that the DOJ " 'never [has] and never will seek to remove a United States attorney to interfere with an ongoing investigation or prosecution, or in retaliation for prosecution,' " but he conceded that Cummins was not removed for a performance-related reason.
94. Id.;
95. see also Preserving Prosecutorial Independence: Is The Department of Justice Politicizing the Hiring and Firing of U.S. Attorneys?: Hearing Before the S. Comm. on the Judiciary, 110th Cong. (Feb. 6, 2007) (testimony of Paul J. McNulty, Deputy Att'y Gen., Dep't of Justice).
96. Dan Eggen, 6 of 7 Dismissed U.S. Attorneys Had Positive Job Evaluations, WASH. POST, Feb. 18, 2007, at All.
97. But see McKay, supra note 6, at 270-71 (claiming that the USAs were spurred into action after Gonzales's January 18 testimony during which they believed he was "lying" to the Senate Judiciary Committee).
98. Dan Eggen, Fired Prosecutor Disputes Justice Dept. Allegation, WASH. POST, Feb. 9, 2007, at A6;
99. Adrienne Packer, U.S. attorney rebuts claim performance led to firing, LAS VEGAS REV.-J., Feb. 8, 2007, at IB.
100. Laurie Kellman, Probe of Prosecutor Firings Intensifies, WASH. POST, Mar. 5, 2007, http://www.washingtonpost.com/wp- dyn/content/article/2007/03/05/AR2007030500.170.html.
101. See Eggen, supra note 62.
102. Restoring Checks and Balances in the Confirmation Process of United States Attorneys: Hearing on H.R. 580 Before the Subcomm. on Commercial and Admin. Law of the H. Comm. on the Judiciary, 110th Cong. 49-50, 54 (2007) [hereinafter House Confirmation Process Hearings] (testimony of David C. Iglesias, former U.S. Att'y for the D.N.M., and John McKay, former U.S. Att'y for the W.D. Mich.).
103. Id. at 73, 76 (testimony of Daniel Bogden, former U.S. Att'y for the D. Nev., and Paul K. Charlton, former U.S. Att'y for the D. Ariz.).
104. Id. at 78-79 (testimony of H.E. (Bud) Cummins, former U.S. Att'y for the E.D. Ark.).
105. Email from H.E. "Bud" Cummins to Dan Bogden, Paul K. Charlton, David Iglesias, Carol Lam, John McKay (Feb. 20, 2007, 17:06 EST), available at http://www.talkingpointsmemo.com/docs/usa-email. Cummins wrote in the email: The essence of [Elston's] message was that [the people at DOJ] feel like they are taking unnecessary flak to avoid trashing each of us specifically or further, but if they feel like any of us intend to continue to offer quotes to the press, or organize behind the scenes congressional pressure, then they would feel forced to somehow pull their gloves off and offer public criticisms .... [Elston] reacted quite a bit to the idea of anyone voluntarily testifying and it seemed clear that they would see that as a major escalation of the conflict meriting some kind of unspecified form, of retaliation.
106. Id.
107. House Confirmation Process Hearings, supra note 66, at 19-20 (testimony of William Moschella, Principal Associate Deputy Att'y Gen.).
108. Alberto R. Gonzales, Op-Ed., They lost my confidence, USA TODAY, Mar. 7, 2007, at 10A.
109. Sheryl Gay Stolberg & Jeff Zeleny, 'Mistakes' Made on Prosecutors, Gonzales Admits, N.Y. TIMES, Mar. 14, 2007, at A1.
110. Id.
111. Transcript, Attorney General Gonzales On the U.S. Attorney Firings (Mar. 13, 2007), available at http://www.washingtonpost.com/wp-dyn/content/ article/2007/03/13//AR2007031300891.html. Gonzales stated: [S]o, as far as I knew, my chief of staff was involved in the process of determining who were the weak performers; where were the districts around the country where we could do better for the people in that district. .... But that is, in essence, what I knew about the process. I was not involved in seeing any memos, was not involved in any discussions about what was going on.... .... ...I never saw documents. We never had a discussion about where things stood.
112. Id.
113. Former Justice Dept. Official Defends Actions, N. Y. TIMES, Mar. 18, 2007, at A23 (quoting Brad Berenson, Kyle Sampson's lawyer).
114. See Dan Eggen, Gonzales Met With Top Aides On Firings, WASH. POST, Mar. 24, 2007, at Al;
115. David Stout & David Johnston, A Top Aide to Gonzales Resigns, Becoming Latest Fallout Casualty, N.Y. TIMES, Apr. 7, 2007, at A1. Goodling took a leave of absence from her position and resigned on April 6.
116. Stout & Johnston, supra.
117. Letter from Richard A. Hertling, Acting Assistant Att'y Gen., to Rep. John Conyers, Jr. and Rep. Linda T. Sanchez (Mar. 28, 2007), available at http://judiciary.house.gov/hearings/pdf/Conyers-Sanchez070328.pdf.
118. Email from Kyle Sampson, Deputy Chief of Staff & Counselor to the Att'y Gen., to Monica Goodling, Dir. of Pub. Affairs, United States Department of Justice (Dec. 19, 2006, 18:27 EST), available at http://judiciary. house.gov/hearings/pdf/DOJDocsR3070313.pdf, at OAG000000127.
119. Compare Letter from Richard A. Hertling, Acting Assistant Att'y Gen., to Sen. Charles E. Schumer (Feb. 23, 2007), available at http://www.talkingpointsmemo.com/docs/schumer-letter/?resultpage=1& (indicating that the letter was from Hertling)
120. with email from Kyle Sampson, Chief of Staff, Dep't of Justice, to Paul J. McNulty, Deputy Att'y Gen., Dep't of Justice, et al., at DAG00000228-29 (Feb. 8, 2007, 16:15 EST), available at http://judiciary.house.gov/ hearings/pdf/DAG2228-2293.pdf (providing the draft text of the letter that Hertling eventually signed).
121. Eggen & Kane, supra note 55. Recalling that Gonzales "'had received a complaint from Karl Rove about U.S. attorneys in three jurisdictions,'"
122. Dana Milbank, Taking One for the Team, When He Could Remember, WASH. POST, Mar. 30, 2007, at A2, Sampson stated, " 'I don't think the attorney general's statement that he was not involved in any discussions of U.S. attorney removals was accurate .... I remember discussing with him this process of asking certain U.S. attorneys to resign.' "
123. Eggen & Kane, supra note 55.
124. Eggen & Kane, supra note 55. Sampson, however, stressed that, to his knowledge, neither he nor any other DOJ official did anything improper in the USA removals.
125. Id. Sampson, explained the apparent contradiction between the letter to Schumer, which claimed that Rove played no role in the appointment of Griffin, and his statement in his email, claiming that the appointment of Griffin was important to Miers and Rove, by explaining that he had actually discussed the appointment only with Rove's aides and thus assumed the importance to Rove.
126. See David Johnston & Eric Lipton, Ex-Aide Disputes Gonzales Stand Over Dismissals, N.Y. TIMES, Mar. 30, 2007, at A1.
127. Dan Eggen & Paul Kane, Senate Delays Gonzales Testimony on Firings, WASH. POST, Apr. 17, 2007, at A14.
128. Gonzales wrote: I know that I did not-and would not-ask for the resignation of any U.S. attorney for an improper reason.... ... To be clear: I directed my then-deputy chief of staff, Kyle Sampson, to initiate this process; fully knew that it was occurring; and approved the final recommendations. Sampson periodically updated me on the review. As I recall, his updates were brief, relatively few in number and focused primarily on the review process. During those conversations, to my knowledge, I did not make decisions about who should or should not be asked to resign. Alberto R. Gonzales, Op-Ed., Nothing Improper, WASH. POST, Apr. 15, 2007, at B7.
129. Dan Eggen & Paul Kane, Senators Chastise Gonzales at Hearing, WASH. POST, Apr. 20, 2007, at A1.
130. Id.
131. Id. In addition, the DOJ began an internal review as to whether Monica Goodling violated the Hatch Act in considering political affiliation in the appointment of interim or acting USAs.
132. Dan Eggen and Amy Goldstein, Ex-Aide to Gonzales Accused Of Bias, WASH. POST, May 3, 2007, at A1.
133. Judiciary Subcomm. Continuing Investigation Hearings, supra note 4, at 10 (testimony of James Comey, former Deputy Att'y Gen., Dep't of Justice).
134. Letter from Paul J. McNulty, Deputy Att'y Gen., to Alberto Gonzales, Att'y Gen. (May 14, 2007), available at http://media.washingtonpost.com/ wp-srv/politics/documents/McNulty_Resignations_051407.pdf.
135. Dan Eggen & Amy Goldstein, Voter-Fraud Complaints by GOP Drove Dismissals, WASH. POST, May 14, 2007, at A4. These cases included USAs Todd Graves and Steven Biskupic, of Milwaukee, who was initially targeted to be removed but was saved, perhaps because he brought fourteen voter-fraud cases after he was added to an early version of the firing list.
136. See Conyers Memo, supra note 21, at 30.
137. See, e.g., Press Release, Office of U.S. Senator Norm Coleman., Statement on Attorney General Alberto Gonzales (May 17, 2007);
138. Press Release, Office of U.S. Senator Chuck Hagel, Hagel Calls for Resignation of Attorney General Gonzales (May 16, 2007).
139. Continuing Investigation into the U.S. Attorneys Controversy and Related Matters (Part I): Hearing Before the H. Comm. on the Judiciary, 110th Cong. 90 (2007) [hereinafter Judiciary Comm. Continuing Investigation Hearings] (testimony of Monica Goodling, Dir. of Pub. Affairs, Dep't of Justice). According to Goodling, "[Gonzales] laid out for me his general recollection of... [s]ome of the process regarding the replacement of the U.S. attorneys.... [A]nd then he asked me ... if I had any reaction to his iteration."
140. Id. Commentator Jon Stewart ridiculed the assumed result that Gonzales was trying to achieve and the AG's explanation that he was trying to comfort Goodling, not influence her testimony. Stewart mocked: By the way, who comforts people by laying out their recollection of events? I know this is a very difficult time for you. I also had a very difficult time between the hours of eight and eleven a.m. on the morning of November 12, at which time I was in no way authorizing political firings. The Daily Show with Jon Stewart (Comedy Central television broadcast May 24, 2007), available at http://www.thedailys.how.com/video/index.jhtml?videoId=87519&title= as-goodling-as-it-gets.
141. Judiciary Comm. Continuing Investigation Hearings, supra note 91, at 8 (testimony of Monica Goodling). Goodling's testimony that she "crossed the line" in asking political questions of job applicants covered by the Hatch Act led to an expanded internal investigation, of DOJ hiring by its Office of Professional Responsibility.
142. Dan Eggen, Justice Dept. Expands Probe to Include Hiring Practices, WASH. POST, May 31, 2007, at A4.
143. Dan Eggen & Paul Kane, Gonzales Now Says Top Aides Got Political Briefings, WASH. POST, Aug. 4, 2007, at A5.
144. See Associated Press, Gonzales' Resignation Text, SFGATE, Aug. 27, 2007, http://www.sfgate.com/cgi-bin/article.cgi?file=/ n/a/2007/08/27/national/w074739D02.DTL; Letter from Alberto Gonzales, Att'y Gen., to President George W. Bush (Aug. 26, 2007), available at http://www.usdoj.gov/ag/speeches/2007/ag_resign_letter.pdf.
145. As this Note went to press, the DOJ's Office of the Inspector General and Office of Professional Responsibility jointly issued a 358-page report detailing the timeline of the USA removals and analyzing the reasons for the firings. U.S. Dep't of Justice, Office of Prof'l Responsibility & Office of Inspector Gen., An Investigation into the Removal of Nine U.S. Attorneys in 2006 (Sept. 2008), available at http://www.usdoj.gov/opr/us-att-firings- rpt092308.pdf. Despite conducting approximately ninety interviews
146. id. at 2, and producing the most detailed USA removal report produced to date, the DOJ was "unable to fully develop the facts regarding the removal of Iglesias and several other U.S. Attorneys because of the refusal by certain key witnesses to be interviewed" and because of "the White House's decision not to provide internal White House documents" to the DOJ investigation
147. id. at 325-26.
148. Eggen & Solomon, supra note 26.
149. Email from Kyle Sampson, Deputy Chief of Staff & Counselor to the Att'y Gen., to Monica Goodling, Dir. of Pub. Affairs, Dep't of Justice (Dec. 14, 2005, 18:47 EST), available at http://judiciary.house.gov/hearings/pdf/ DOJDocsPt3070313.pdf, at OAG000000125.
150. Compare note 74 and accompanying text
151. with note 83 and accompanying text.
152. See, e.g., Ron Hutcheson et al., White House says Rove relayed complaints about prosecutors, MCCLATCHY NEWSPAPERS, Mar. 11, 2007, available at http://www.mcclatchydc. com/whitehouse/story/15873.html.
153. Letter from Richard A. Hertling to Sen. Charles E. Schumer, supra note 79. Despite contradicting the White House, Sampson's emails themselves indicate that the DOJ was aware of Rove's involvement.
154. See supra note 78 and accompanying text.
155. See supra notes 23-33, 56 and accompanying text.
156. See supra notes 56-57 and accompanying text.
157. See supra note 61 and accompanying text.
158. See supra notes 66-69 and accompanying text.
159. These contradictions say nothing of inconsistencies like the DOJ initially targeting neither Iglesias, nor McKay, nor Charlton, see email from Kyle Sampson to Harriet Miers, supra note 21, but then removing these USAs after influential Republicans, including members of Congress, complained about investigations - or lack of investigations - in elections or affairs implicating that member, her family, or her close political allies
160. see supra notes 30, 34, 43, 46-50, 52-55 and accompanying text. The recent DOJ investigation into the USA firings similarly concluded that partisan politics likely motivated at least some of the USA removals: The most serious allegations that arose were that the U.S. Attorneys were removed based on improper political factors, including to affect the way they handled certain voter fraud or public corruption investigations and prosecutions. Our investigation found significant evidence that political partisan, considerations were an important factor in the removal of several of the U.S. Attorneys. The most troubling example was David Iglesias, the U.S. Attorney in New Mexico. We concluded that complaints from New Mexico Republican politicians and party activists about Iglesias's handling of voter fraud and public corruption cases caused his removal, and that the Department removed Iglesias without any inquiry into his handling of the cases.
161. U.S. Dep't of Justice, supra note 95, at 325-26.
162. An argument that the firing of a USA would always generate public and congressional interest is rebutted by the fact that neither Bud Cummins's nor Todd Graves's firings were a major public issue until the mass USA firings came
163. CQ Transcripts Wire, Transcript: U.S. Senate Judiciary Committee Holds a Hearing on Dismissal of U.S. Attorneys, WASHINGTONPOST.COM, Mar. 6, 2007, http://media.washingtonpost.com/wp-srv/politics/documents/ senatejudiciary_hearing_030607.htm 44 (illustrating that Cummins was notified in June 2006 that he was being forced to resign). This delayed outcry demonstrates that when a USA resigns without protest, timely public protest is normally impossible.
164. See U.S. Dep't of Justice, supra note 95;
165. U .S. Dep't of Justice, Office of Prof;l Responsibility & Office of Inspector Gen., An Investigation of Allegations of Politicized Hiring by Monica Goodling and Other Staff in the Office of the Attorney General (July 28, 2008), available at http://www.usdoj.gov/opr/goodling072408.pdf;
166. U.S. Dep't of Justice, Office of Prof'l Responsibility & Office of Inspector Gen., An Investigation of Allegations of Politicized Hiring in the Department of Justice Honors Program and Summer Law Intern Program (June 24, 2008), available at http://www.usdoj.gov/opr/oig-opr-investigation-hire- slip.pdf. On September 29, 2008, AG Michael Mukasey named a special prosecutor, Nora Dannehy, the acting USA in Connecticut, to further the investigation into the USA removals and determine whether any administration officials or members of Congress should face criminal charges arising from their involvement in the removal process.
167. Eric Lichtblau & Sharon Otterman, Special Prosecutor Named in Attorney Firings Case, N.Y. TIMES, Sept. 30, 2008, at A16.
168. See 18 U.S.C. § 1512(c) (2000 & Supp. 2005).
169. See U.S. CONST. art. I, § 2, cl. 5 (conferring sole power of impeachment upon the House of Representatives);
170. id. § 3, cl. 6 (granting sole power to try cases of impeachment to the Senate);
171. id. art. II, § 4 (president, vice president, and other civil officers of the United States subject to impeachment for "Treason, Bribery, or other high Crimes and Misdemeanors");
172. id. art. III, § 1 (judges to have tenure during "good Behaviour").
173. See, e.g., Yoo et al., supra note 10.
174. U.S. CONST. art. II, § 1.
175. Id. § 3. Though "Take Care Clause" is more common, this clause is also sometimes referred to as the "Faithful Execution Clause."
176. E.g., Peter M. Shane, Returning Separation-of-Powers Analysis to Its Normative Roots: The Constitutionality of Qui Tam Actions and Other Private Suits to Enforce Civil Fines, 30 ENVTL. L. REP. 11081, 11102 (2000).
177. Under a third theory, the removal power is derived from the Appointments Clause, U.S. CONST. art. II, § 2, cl. 2, and "[t]he right to remove is an incident to the power of appointment." Ex parte Hennen, 38 U.S. (3 Pet.) 230, 253 (1839).
178. Commentators have explained that this theory, while symmetrical, is not supported constitutionally, practically, or historically. See, e.g., Abner S. Greene, Checks and Balances in an Era of Presidential Lawmaking, 61 U. CHI. L. REV. 123, 161 (1994);
179. Saikrishna Prakash, Removal and Tenure in Office, 92 VA. L. REV. 1779, 1834-36 (2006).
180. But see Halliburton, supra note 14, at 214. The Supreme Court and recent administrations have seemed more reluctant to abandon this view despite its deficiencies.
181. See, e.g., Morrison v. Olson, 487 U.S. 654, 678-79 (1988);
182. Op. Off. Legal Counsel 95, 97-100 (1983).
183. A more thorough discussion of the derivation of the removal power is beyond the scope of this Note and has been extensively discussed in the literature. See, e.g., Steven G. Calabresi & Saikrishna B. Prakash, The President's Power To Execute the Laws, 104 YALE L.J. 541 (1994);
184. Steven G. Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105 HARV. L. REV. 1153 (1992);
185. Martin S. Flaherty, The Most Dangerous Branch, 105 YALE L.J. 1725 (1996);
186. Martin S. Flaherty, Relearning Founding Lessons: The Removal Power and Joint Accountability, 47 CASE W. RES. L. REV. 1563 (1997);
187. Greene, supra;
188. Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 COLUM. L. REV. 1 (1994);
189. Robert V. Percival, Presidential Management of the Administrative State: The Not-So-Unitary Executive, 51 DUKE L.J. 963 (2001);
190. Prakash, supra.
191. Myers v. United States, 272 U.S. 52, 111-15 (1926).
192. See Curtis A. Bradley & Martin S. Flaherty, Executive Power Essentialism and Foreign Affairs, 102 MICH. L. REV. 545, 658 (2004).
193. Myers, 272 U.S. at 119-33.
194. THE FEDERALIST NO. 77 (Alexander Hamilton). But note that, as secretary of the treasury in President Washington's Cabinet, Hamilton changed his view expressed therein. Prakash, supra note 112, at 1829.
195. 5 U.S. (1 Cranch) 137 (1803).
196. In dicta, Marshall wrote : [W]hen the officer is not removeable at the will of the executive, the appointment is not revocable, and cannot be annulled. It has conferred legal rights which cannot be resumed. ... [A]s the law creating the office, gave the officer a right to hold for five years, independent of the executive, the appointment was not revocable; but vested in the officer legal rights, which are protected by the laws of his country. Marbury, 5 U.S. (1 Cranch) at 162.
197. Parsons v. United States, 167 U.S. 324, 335-36 (1897).
198. See, e.g., Morrison v. Olson, 487 U.S. 654, 689-90 (1998);
199. Humphrey's Executor v. United States, 295 U.S. 602, 631-32 (1935) (citing Marbury, 5 U.S. (1 Cranch) at 162, 165-66).
200. 167 U.S. 324 (1897).
201. See id.
202. Id. at 342-43.
203. 272 U.S. 52 (1926).
204. Id. at 107.
205. Id. at 106, 161.
206. See id. at 173-74.
207. Taft retired from the Court in 1930. ALPHEUS THOMAS MASON, WILLIAM HOWARD TAFT: CHIEF JUSTICE 297-98 (1965).
208. 295 U.S. 602 (1935).
209. See Myers, 272 U.S. at 240 (Brandeis, J., dissenting);
210. id. at 177 (Holmes, J., dissenting).
211. Humphrey's Executor, 295 U.S. at 623.
212. Id. at 629.
213. Id. at 629-32.
214. Id. at 629.
215. See Morrison v. Olson, 487 U.S. 654, 689-91 (1988).
216. 357 U.S. 349 (1958).
217. Wiener, 357 U.S. at 356;
218. see also ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 351-52 (3d ed. 2006).
219. Wiener, 357 U.S. at 350.
220. Id. at 352, 354-56. While the Court continued to rely on Wiener's function as the key issue in the case, Wiener remains important today for its holding that where independence from the president is desirable, the Court may be more willing to find an outer limit to the president's removal power.
221. See id. at 352-56.
222. 487 U.S. at 659-62.
223. 28 U.S.C. § 596(a)(1)-(2) (2000).
224. See Morrison, 487 U.S. at 687-91;
225. Humphrey's Executor v. United States, 295 U.S. 602 (1935).
226. See M. Elizabeth Magill. The Revolution that Wasn't. 99 NW. U. L. REV. 47, 52 (2004).
227. Morrison. 487 U.S. at 659.
228. Id. at 689-90.
229. See id.
230. Id. at 690.
231. Id. at 691.
232. Id. at 688.
233. Id. at 693 n.33.
234. Id. at 695.
235. See id. at 705 (Scalia, J., dissenting).
236. See id.
237. Id. at 705-08.
238. See id. at 705.
239. Id. at 691 (majority opinion);
240. see also Calabresi & Rhodes, supra note 112, at 1167 (conceding this reading of Morrison but noting that the Supreme Court's approach to removal is "hopelessly contradictory").
241. See, e.g., Halliburton, supra note 14, at 215;
242. Lessig & Sunstein, supra note 112, at 117-18;
243. see also Steven Breker-Cooper, The Appointments Clause and the Removal Power: Theory and Séance, 60 TENN. L. REV. 841, 861 (1993) ("Congress's ability to fetter the Resident's discretion in removing inferior officers has never been seriously doubted." (citing United States v. Perkins, 116 U.S. 483 (1886))). What types of limitations are permissible for primary officers, if any, is debatable; however, as this Note claims that USAs are inferior officers, see discussion infra Section II.B., such a discussion is unnecessary here.
244. See Myers v. United States, 272 U.S. 52, 159-61 (1926);
245. United States v. Perkins, 116 U.S. 483 (1886). A more difficult question is whether Congress can limit the removal of inferior officers for whom it has not vested appointment authority in a department head.
246. See infra note 163.
247. See discussion infra Section III.B.
248. See 2 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 362 (Melville M. Bigelow ed., 5th ed. 1891).
249. United States v. Germaine, 99 U.S. 508, 509 (1878).
250. Buckley v. Valeo, 424 U.S. 1, 132 (1976). Some inferior officers, such, as USAs, are appointed by advice and consent, 28 U.S.C. § 54.1(a) (2000), but this is the result of Congress choosing to impose that method of appointment by statute, see id.
251. U.S. CONST. art. II, § 2, cl. 2;
252. Morrison v. Olson, 487 U.S. 654, 670-73 (1988). A subsidiary issue to the inferior officer discussion is whether Congress must exercise its constitutional authority to vest the appointment of an inferior officer in someone other than the President (with, the advice and consent of the Senate) in order to be able to enact removal limitations.
253. Myers, in demurring from the previous claims of Justice Story, see 2 STORY, supra note 160, stated that Congress could only create removal limitations for inferior officers when those officers were appointed in some other way.
254. See Myers v. United States, 272 U.S. 52, 162 (1926) (citing with approval United States v. Perkins, 116 U.S. 483 (1886));
255. see also CHARLES E. MORGANSTON, THE APPOINTING AND REMOVAL POWER OF THE PRESIDENT OF THE UNITED STATES 133 (1929).
256. However, Humphrey's Executor v. United States, 295 U.S. 602, 629-31 (1935)
257. and Wiener v. United States, 357 U.S. 349, 350-52 (1958), allowed removal limitations for officers appointed by the President with Senate advice and consent. While the question is thus not resolved, even if a court were to require that Congress vest the appointment of the USAs, for any of the legislative options discussed below, see discussion infra Section III.B, Congress could vest the appointment in the AG with advice and consent. This would satisfy any constitutional concern arising from Myers and would not, in practice, limit the President's role in the appointment process due to presidential control of the AG.
258. Morrison, 487 U.S. at 671.
259. Id. at 671-72.
260. See Edmond v. United States, 520 U.S. 651, 661-64 (1997).
261. Id. The Edmond Court wrote : [T]he term "inferior officer" connotes a relationship with some higher ranking officer or officers below the President: Whether one is an "inferior" officer depends on whether he has a superior. It is not enough that other officers may be identified who formally maintain a higher rank, or possess responsibilities of a greater magnitude. If that were the intention, the Constitution might have used the phrase "lesser officer."
262. Rather, in the context of a Clause designed to preserve political accountability relative to important Government assignments, we think it evident that "inferior officers" are officers whose work is directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate.
263. Id. at 662-63 (emphasis added).
264. See Morrison, 487 U.S. at 671-72 (stating that the removal factors, pve-Edmond, are whether the officer is: "subject to removal by a higher Executive Branch official;" "empowered by the Act to perform only certain, limited duties;" "limited in jurisdiction;" and "limited in tenure").
265. See Edmond, 520 U.S. at 661-65. Commentators and at least one court have recognized the tension between these decisions. United States v. Hilario, 218 F.3d 19, 25 n.3 (1st Cir. 2000) ("[T]he Court's 1997 decision in Edmond v. United States essentially displaced the faulty Appointments Clause analysis of Morrison v. Olson."
266. (citing Steven G. Calabresi, Foreword, The Structural Constitution and the Countermajoritarian Difficulty, 22 HARV. J.L. & PUB. POL'Y 3, 5 (1998) (alteration in original));
267. Nick. Bravin, Note, Is Morrison v. Olson Still Good Law? The Court's New Appointments Clause Jurisprudence, 98 COLUM. L. REV. 1103, 1117-20 (1998)).
268. E.g., United States v. Hilario, 2.18 F.3d 19 (1st Cir. 2000);
269. United States v. Gantt, 194 F.3d 987 (9th Cir. 1999);
270. United States v. Baker, 504 F. Supp. 2d 402 (E.D. Ark. 2007).
271. Gantt, 194 F. 3d at 999. The court noted that it was deciding the constitutional issue in the context of an interim USA but that there should be no distinction because interim. USAs possess the same powers as non-interim USAs and are to be distinguished from "Acting" USAs.
272. Id. at 999 n.5.
273. See supra note 167 and accompanying text.
274. See, e.g., Magill, supra note 143, at 61-62;
275. Ross E. Wiener, Inter-Branch Appointments After the Independent Counsel: Court Appointment of United States Attorneys, 86 MINN. L. REV. 363, 405-06 (2001) (describing the "ad hoc" nature of the Court's principal-inferior distinction but determining that USAs are principal officers).
276. 20 Op. Off. Legal Counsel 124, 149 (1996).
277. Id. at 150 (citing Silver v. U.S. Postal Serv., 951 F.2d 1033 (9th Cir. 1991)).
278. 2 Op. Off. Legal Counsel 58, 58-59 (1978) (citing Ex parte Siebold, 100 U.S. 371, 397 (1879));
279. see also 20 Op. Off. Legal Counsel at 150.
280. See supra notes 166-169 and accompanying text.
281. See supra notes 171-172 and accompanying text.
282. See United States v. Hilario, 218 F.3d 19, 24 (1st Cir. 2000) (noting that the government argued that all USAs should be categorized as inferior officers);
283. United States v. Baker, 504 F. Supp. 2d 402, 406 (E.D. Ark. 2007) (noting that the government claimed in its briefs that USAs are inferior officers);
284. supra notes 174-176 and accompanying text.
285. House Confirmation Process Hearings, supra note 66, at 132 (statement of T.J. Halstead, Legislative Att'y, Am. Law Div., Cong. Research Serv.);
286. Levenson, supra note 8, at 306-15.
287. But see Wiener, supra note 173, at 405-06. At least one recent commentator has noted that "[n]o court, however, has agreed with Wiener's assessment .... [S]ince the time of his article, it appears that U.S. Attorneys have enjoyed less freedom and discretion than what Wiener described."
288. Levenson, supra note 8, at 316.
289. See Morrison v. Olson, 487 U.S. 654, 689-90 (1988);
290. supra note 147 and accompanying text;
291. see also Yoo et al., supra note 10, at 695 (disagreeing with the Morrison Court's "apparent conclusion that even officers performing such core executive functions as prosecution could be insulated from presidential removal").
292. See supra notes 124-139 and accompanying text.
293. See Morrison, 487 U.S. at 689-91.
294. Id. at 690 ("Myers was undoubtedly correct in its holding, and in its broader suggestion that there are some 'purely executive' officials who must be removable by the President at will if he is to be able to accomplish his constitutional role.");
295. see also supra notes 140-151 and accompanying text. The Court went on to state: "We do not mean to suggest that an analysis of the functions served by the officials at issue is irrelevant."
296. Morrison, 487 U.S. at 691. The value of a formalistic assessment is furthered by the almost complete turnover in the composition of the Court since Morrison was decided. The only Justice in the 7-1 Morrison majority still serving as of publication of this Note is Justice Stevens.
297. Stephanie A.J. Dangel, Note, Is Prosecution a Core Executive Function? Morrison v. Olson and the Framers' Intent, 99 YALE L.J. 1069, 1071 (1990);
298. John A. Fairlie, The United States Department of Justice, 3 MICH. L. REV. 352, 358 (1905).
299. 3 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 625 (Max Farrand ed., 1911).
300. THE FEDERALIST NO. 72 (Alexander Hamilton).
301. Charles Warren, New Light on the History of the Federal Judiciary Act of 1789, 37 HARV. L. REV. 49, 108-09 (1923-1924).
302. See Susan Low Bloch, The Early Role of the Attorney General in Our Constitutional Scheme: In the Beginning There Was Pragmatism, 1989 DUKE L.J. 561, 567.
303. See HOMER CUMMINGS & CARL MCFARLAND, FEDERAL JUSTICE 142-60 (1937) (describing the office of the Attorney General before the creation of the Department of Justice);
304. Letter from Edmund Randolph, Att'y Gen., to President George Washington (Dec. 26, 1791), reprinted in 1 AMERICAN STATE PAPERS, CLASS X, MISCELLANEOUS 45-46 (Walter Lowrie & Walter S. Franklin, eds., 1834).
305. See CUMMINGS & MCFARLAND, supra note 190, at 218;
306. Letter from Edmund Randolph to President George Washington, supra note 190, at 45-46.
307. See Act to establish the Department of Justice, ch. 150, 16 Stat. 162 (1870). As Lessig & Sunstein recount, from 1789 to 1820 the federal district attorneys reported to "no one," and from 1820 through 1861 they reported to the Secretary of the Treasury, who, at that time, reported to Congress. Lessig & Sunstein, supra note 112, at 16-17.
308. But see Calabresi & Prakash, supra note 112, at 658-59;
309. Angela J. Davis, The American Prosecutor: Independence, Power, and the Threat of Tyranny, 86 IOWA L. REV. 393, 453-57 (2001).
310. Morrison v. Olson, 487 U.S. 654, 706 (1988) (Scalia, J., dissenting);
311. supra notes 153-154 and accompanying text.
312. See, e.g., Removing Politics from the Administration of Justice: Hearings on S. 2803 and S. 2978 Before the Subcomm. on Separation of Powers of the S. Comm. on the Judiciary, 93d Cong. (1974) [hereinafter Removing Politics Hearings];
313. Stephen L. Carter, Comment, The Independent Counsel Mess, 102 HARV. L. REV. 105, 126-28 (1988);
314. Dangel, supra note 185;
315. Harold J. Krent, Executive Control over Criminal Law Enforcement: Some Lessons from History, 38 AM. U. L. REV. 275, 286-90 (1989);
316. Lessig & Sunstein, supra note 112, at 15-22;
317. Jonathan Zasloff, Taking Politics Seriously: A Theory of California's Separation of Powers, 51 UCLA L. REV. 1079, 1096-1101 (2004).
318. Fairlie, supra note 185, at 353.
319. But see Note, Removing Politics from the Justice Department: Constitutional Problems with Institutional Reform, 50 N.Y.U. L. REV. 366, 397 (1975) ("Rosecutorial discretion and law enforcement may not be exclusive or illimitable functions of the executive branch, but they are, according to the prevalent view, prerogatives of the executive and are not easily severed from that branch.").
320. See Morrison, 487 U.S. at 705, 708 (Scalia, J., dissenting).
321. Id. at 690-93 (majority opinion).
322. See supra notes 140-151 and accompanying text;
323. see also Marshall J. Breger & Gary J. Edles, Established by Practice: The Theory and Operation of Independent Federal Agencies, 52 ADMIN. L. REV. 1111, 1144 (2000).
324. Federal employees are typically divided into the Senior Executive Service, a cadre of high-level positions that are not appointed by the President or confirmed by the Senate, see 5 U.S.C. § 3132(a)(2) (2006), the Competitive Service, the majority of federal employees who are hired through the merit hiring system, see 5 U.S.C. § 2102 (2006);
325. U.S. GEN. ACCOUNTING OFFICE, THE EXCEPTED SERVICE 1 (1997), or the excepted service, the employees who are outside both other systems, see 5 U.S.C. § 2103 (2006). USAs, however, are presidential appointees, see 28 U.S.C. § 541 (2000), who - for formal employment purposes - are designated as "Presidential Appointment with Senate Confirmation" and whose salaries are determined not by a federal pay table but by "administrative determination."
326. See H. COMM. ON GOV'T REFORM, POLICY AND SUPPORTING POSITIONS ("THE PLUM BOOK") V, 96-98 (2004), available at http://www.gpoaccess.gov/plumbook/2004/2004_plum_book.pdf;
327. see also JUSTICE MGMT. DIV. PERS. STAFF, DEP'T OF JUSTICE, TRANSITION 2002 HUMAN RESOURCES BRIEFING GUIDE App. B (2002), available at http://www.usdoj.gov/jmd/ps/ guitrans.htm#pas.
328. See infra notes 276-282 and accompanying text.
329. See discussion supra Part I (describing potentially reputation-damaging statements that DOJ officials made about the fired USAs as well as perceived threats made against the USAs if they continued to publicly criticize the DOJ).
330. See Pickering v. Board of Ed., 391 U.S. 563, 568 (1968).
331. Elrod v. Burns, 427 U.S. 347, 360 (1976).
332. See Connick v. Myers, 461 U.S. 138, 146 (1983). Whether speech is a matter of public concern is governed by "the content, form, and context of a given statement."
333. Id. at 147-48.
334. See Pickering, 391 U.S. at 568.
335. In practice, the Court's jurisprudence in this area has created relatively robust protections for public employees' speech. For example, in Rankin v. McPherson the Supreme Court held that a constable's office violated a clerical employee's First Amendment protections by dismissing her when, discussing the failed assassination attempt of President Reagan, she stated that " 'if they go for him again, I hope they get him.' " 483 U.S. 378, 381, 392 (1987).
336. The Court has clarified that the formal "policymaking" label is not the "ultimate inquiry" as to an employee's First Amendment Rights. Branti v. Finkel, 445 U.S. 507, 5.18 (1980). It has also conceded that "[n]o clear line can be drawn between policymaking and nonpolicymaking positions," Elrod, 427 U.S at 367, and that the focus of the inquiry should be on "[t]he nature of the responsibilities," and whether the employee "formulates plans for the implementation of broad goals."
337. Id. at 367-68.
338. The Court has, however, emphasized an employee's function, noting that an "employee with responsibilities that are not well defined or are of broad scope more likely functions in a policymaking position," id. at 368, and employees with access to "confidential documents that influenced policymaking deliberations" were more likely to fall under the exception as well.
339. Branti, 445 U.S. at 511. A USA "exercises wide discretion in the use of his/her resources to further the priorities of the local jurisdictions and needs of their [sic] communities," United States Department of Justice, United States Attorneys Mission Statement, http://www.usdoj.gov/usao (last visited Aug. 22, 2008), and is almost certainly a policymaking official both formally and functionally.
340. See Branti, 445 U.S. at 5.19 & n.13 (contrasting the role of the public defender for whom the Court found First Amendment protections with that of the prosecutor whose job includes "broader public responsibilities");
341. cf. id. at 523 (Powell, J., dissenting) ("The Court's vague, overbroad decision may cast serious doubt on the propriety of dismissing United States attorneys, as well as thousands of other policymaking employees at all levels of government, because of their membership in a national political party.").
342. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985).
343. See Bd. of Regents v. Roth, 408 U.S. 564, 576-78 (1972).
344. See, e.g., Eddings v. City of Hot Springs, 323 F.3d 596 (8th. Cir. 2003);
345. Baron v. Port Auth., 271 F.3d 81 (2d Cir. 2001).
346. See, e.g., Bishop v. Wood, 426 U.S. 341, 345-47 (1976);
347. Hill v. Borough of Kutztown, 455 F.3d 225, 234-35 (3d Cir. 2006);
348. Moulton v. City of Beaumont, 991 F.2d 227, 230-31 (5th Cir. 1993).
349. See supra note 200.
350. See Doe v. U.S. Dep't of Justice, 753 F.2d 1092, 1097 n.4, 1101 n.8 (D.C. Cir. 1985);
351. Fiorentino v. United States, 607 F.2d 963, 966-69 (Ct. Cl. 1979);
352. Commerce v. Hantman, No. Civ. 97-0242, 1999 WL 1611325, at *5 (D.D.C Oct. 28, 1999).
353. See Bishop, 426 U.S. at 343, 348 (rejecting a liberty infringement claim of a police officer after statements about his poor performance were made during prettial discovery);
354. Paul v. Davis, 424 U.S. 693, 711-12 (1976) (rejecting a liberty infringement claim arising from the Louisville Police Department's use of an "Active Shoplifters" poster with the plaintiff's picture because damage to reputation alone was not enough to implicate Fourteenth Amendment guarantees);
355. Roth, 408 U.S. at 573 (rejecting a liberty infringement claim of a public university professor after his contract was not renewed without reason);
356. see, e.g., Graham v. City of Philadelphia, 402 F.3d 139 (3d Cir. 2005);
357. Velez v. Levy, 401 F.3d 75 (2d Cir. 2005);
358. Patterson v. City of Utica, 370 F.3d 322 (2d Cir. 2004);
359. Lighton v. Univ. of Utah, 209 F.3d 1213 (10th Cir. 2000);
360. Johnson v. Morris, 903 F.2d 996, 999 (4th Cir. 1990). Paul v. Davis is often cited as the case creating the "stigma plus" standard.
361. See, e.g., Siegert v. Gilley, 500 U.S. 226, 234 (1991).
362. See, e.g., Paul, 424 U.S. at 701.
363. See, e.g., Sims v. Fox, 492 F.2d 1088 (5th Cir. 1974).
364. See, e.g., McMath v. City of Gary, 976 F.2d 1026, 1034-35 (7th Cir. 1992);
365. Brennan v. Hendrigan, 888 F.2d 189, 196 (1st Cir. 1989).
366. See, e.g., Dasey v. Anderson, 304 F.3d 148, 155 (1st Cir. 2002) (finding that private showing for purposes of termination hearing of police officer smoking marijuana is insufficiently public to be stigmatizing);
367. Donato v. Plainview-Old Bethpage Cent. Sch. Dist., 96 F.3d 623, 630 (2d Cir. 1996) (stating that an employee fired for incompetence only suffers a liberty deprivation if the charges of incompetence are sufficiently serious to hinder future employment);
368. Portman v. County of Santa Clara, 995 F.2d 898, 908 (9th. Cir. 1993) (stating that the court was focusing on the lack of moral turpitude in a termination letter);
369. Robinson, v. City of Montgomery City, 809 F.2d 1355, 1356 (8th Cir. 1987) (holding that a city press release from the board of aldermen and distributed locally was not sufficiently stigmatizing);
370. Brouillette v. Bd. of Dirs. of Merged Area IX, 519 F.2d 126, 128 (8th Cir. 1975) (noting that charges against a teacher of tardiness and an inability to maintain order are "relatively minor" and are not charges that rise to the level of constitutional protection).
371. See supra notes 61-63, 98-105 and accompanying text.
372. See John Cook, Fired federal attorney McKay to join Getty Images, SEATTLE POSTINTELLIGENCER, May 22, 2007, at El;
373. Schmitt, supra note 4.
374. Even if USAs could show stigmatization providing grounds for a liberty infringement claim, such a showing would be a pyrrhic victory because it would not entitle the USAs to damages or reinstatement. The remedy mandated for a liberty infringement under the Due Process Clause is merely a name-clearing hearing that provides "an opportunity to refute the charge" underlying the dismissal. Bd. of Regents v. Roth, 408 U.S. 564, 573 (1972). A further difficulty for the USAs is that even if they could articulate a constitutional claim, they would be unable to seek damages through a Bivens action, see Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (197.1), because the claim would arise out of their federal employment, a "special factor" in the Court's Bivens jurisprudence, see Bush v. Lucas, 462 U.S. 367, 388-90 (1983).
375. As this Note argues infra, in a future case involving a situation similar to the USAs' dismissal or the Marston Affair, the claim of impropriety would be based on an assertion that purely partisan removals are improper as they do not further the president's Article II grant. See discussion infra Section III.C. At least two commentators have informally argued this limit to the removal power. See Posting of Michael C. Dorf to Dorf on Law, http://michaeldorf.org/2007/03/executive-privilege-contempt-of.html (Mar. 20, 2007, 00:02 EST);
376. Posting of Michael C. Dorf to Dorf on Law, http://michaeldorf.org/2007/ 03/dont-say-political-say-partisan.html (Mar. 19, 2007, 08:19 EST);
377. Posting of Marty Lederman to Balkinization, http://balkin.blogspot.com/ 2007/03/did-anyone-in-white-house-act.html (Mar. 21, 2007, 23:12 EST).
378. Morrison v. Olson, 487 U.S. 654, 689-90 (1988) (quoting U.S. CONST. art. II, § 3);
379. see also Magill, supra note 143, at 51-52 (claiming the "important change" from a focus on whether the officer that Congress seeks to limit is "exercising 'purely executive' authority" to whether the limit impairs the president's duty to " 'take care that the laws be faithfully executed' .... makes one sit up and take notice");
380. Halliburton, supra note 14, at 2.15 ("[T]he Resident's otherwise plenary authority is limitable only if independence in the position is constitutionally desirable, and only if the limitation does not prohibit removal altogether, but instead retains some version of a 'good cause' provision.");
381. discussion supra Section. II.B.
382. See infra notes 233-244, 249-256 and accompanying text.
383. See infra 233-244 and accompanying text.
384. See discussion supra Part I; infra 245-248 and accompanying text.
385. See discussion supra Part I; infra notes 249-256 and accompanying text.
386. See discussion supra Section II.B; U.S. Dep't of Justice, supra note 95, at 330 ("We believe that removing U.S. Attorneys based on their lack of political support could affect the integrity and independence of the Department's prosecutive decisions and the public's confidence that such decisions are insulated from political considerations. ").
387. See DANIEL J. MEADOR, THE PRESIDENT, THE ATTORNEY GENERAL, AND THE DEPARTMENT OF JUSTICE 4 (1980);
388. see generally Eisenstein, supra note 7 (describing the tensions between USAs and "Main Justice").
389. Berger v. United States, 295 U.S. 78, 88 (1935). The Court stated: The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor-indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones.
390. Id.
391. Robert H. Jackson, Att'y Gen., Address at the Second Annual Conference of United States Attorneys: The Federal Prosecutor (Apr. 1, 1940), in 31 AM. INST. CRIM. L. & CRIMINOLOGY 3 (1940).
392. Lessig & Sunstein, supra note 112, at 17 (quoting Act of Mar. 3, 1817, ch. 45, § 10, 3 Stat. 366, 367).
393. Id.
394. (citing DARRELL H. SMITH, THE GENERAL ACCOUNTING OFFICE: ITS HISTORY, ACTIVITIES, AND ORGANIZATION 22 (1927)).
395. See 1 ANNALS OF CONG. 581 (Joseph. Gales ed., 1834).
396. Id. at 635-36.
397. Id. at 636. "I do not say the office is either executive or judicial; I think it rather distinct from both, though it partakes of each, and therefore some modification, accommodated to those circumstances, ought to take place. I would, therefore, make the officer responsible to every part of the Government."
398. Id. at 638.
399. But see Lessig & Sunstein, supra note 112, at 17 n.70 (claiming that "too much of the anti-unitarian case may be resting upon this single speech by Madison").
400. E.g., MEADOR, supra note 230, at 1;
401. Eisenstein, supra note 7, at 260-61.
402. See Eisenstein, supra note 7, at 234.
403. See Removing Politics Hearings, supra note 195.
404. See House Marston Hearings, supra note 2, at 104-05.
405. See id.
406. Id. at 45 (testimony of Griffin B. Bell, U.S. Att'y Gen.).
407. Id. at 46. AG Bell also claimed that he would discharge a USA who politicized her office.
408. Id.
409. See discussion supra Part I.
410. See 153 CONG. REC. S1993-97 (daily ed. Feb. 15, 2007) (statements of Sens. Leahy and Feinstein).
411. Conyers Memo, supra note 21, at 32-33.
412. Id. at 25, 32-62;
413. see also infra note 259 and accompanying text.
414. See Morrison v. Olson, 487 U.S. 654, 704 (1987) (Scalia, J., dissenting).
415. Bowsher v. Synar, 478 U.S. 714, 722 (1986).
416. Morrison, 487 U.S. at 694-96;
417. Humphrey's Executor v. United States, 295 U.S. 602, 629-30 (1935);
418. Myers v. United States, 272 U.S. 52, 161 (1926);
419. Magill, supra note 143, at 52.
420. Morrison, 487 U.S. at 728-29 (Scalia, J., dissenting).
421. See, e.g., John C. Yoo, Laws as Treaties?: The Constitutionality of Congressional-Executive Agreements, 99 MICH. L. REV. 757, 793 (2001)
422. (citing Calabresi & Prakash., supra note 112, at 593-99).
423. See, e.g., Philip B. Kurland, The Rise and Fall of the "Doctrine" of Separation of Powers, 85 MICH. L. REV. 592, 601 (1986).
424. Morrison, 487 U.S. at 728-29 (Scalia, J., dissenting).
425. See discussion supra Part I.
426. See Eisenstein, supra note 7, at 233 (noting that Presidents Eisenhower, Kennedy, Clinton, and George W. Bush undertook a wholesale replacement of USAs at the beginning of their presidential terms);
427. House Confirmation Process Hearings, supra note 66 (statement of T.J. Halstead, Legislative Att'y, Am. Law Div., Cong. Research Serv.) (noting the "normal turnover" in USAs when a new president comes into office). In contrast, the involuntary removal of a large number of USAs in the middle of
428. See KEVIN M. SCOTT, CONG. RESEARCH SERV., U.S. ATTORNEYS WHO HAVE SERVED LESS THAN FULL FOUR-YEAR TERMS, 1981-2006, at 5-7 (2007) (finding that most USAs serving fewer than a full term had left for other prestigious government positions and that a significant minority had resigned due to misconduct). Another reason for such removals is a president's logical claim, that it is necessary under the Vesting Clause of the Take Care Clause to have at least some of his "own men" across all of the USA offices upon, beginning his administration.
429. See discussion supra Part I. The primary check on the removal power is political. Morrison, 487 U.S. at 728-29 (Scalia, J., dissenting).
430. Conyers Memo, supra note 21, at 32-33.
431. Indeed, the current House Judiciary Committee has considered the possibility of such a provision for USAs. See id. The benefits and constitutionality of this proposal may depend on the manner in which Congress limits the scope of removal.
432. See S. 2803, 93d Cong. § 2 (1973).
433. Morrison, 487 U.S. at 689-90.
434. See Bowsher v. Synar, 478 U.S. 714, 726 (1986);
435. INS v. Chadha, 462 U.S. 919, 958-59 (1983);
436. Myers v. United States, 272 U.S. 52, 161 (1926);
437. Magill, supra note 143, at 52.
438. See Morrison, 487 U.S. at 686;
439. Wiener v. United States, 357 U.S. 349, 355-56 (1958);
440. Humphrey's Executor v. United States, 295 U.S. 602, 629-630 (1935);
441. Magill, supra note 143, at 52.
442. See discussion infra Section III.C.
443. See House Marston Hearings, supra note 2, at 2.
444. See supra note 2.
445. See Removing Politics Hearings, supra note 195.
446. S. 2803, 93d Cong. § 2(a) (1973).
447. See id. § 4(a).
448. See, e.g., Removing Politics Hearings, supra note 195, at 427-33 (statement of Robert L. Tienken, Senior Specialist in American Public Law, Library of Congress, Congressional Research Service).
449. See supra notes 185-193 and accompanying text.
450. See Morrison v. Olson, 487 U.S. 654, 691 (1987);
451. id. at 706 (Scalia, J., dissenting). One of the few points on which the majority and Justice Scalia did agree was that prosecution is traditionally considered to be a function of the Executive Branch.
452. See Removing Politics Hearings, supra note 195 (statement of Robert L. Tienken);
453. Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 COLUM. L. REV. 573, 648 (1984) (claiming that one of the president's core functions is having "significant, ongoing relationships with all agencies responsible for law-administration").
454. See Morrison, 487 U.S. at 727-28 (Scalia, J., dissenting)
455. (quoting Jackson, supra note 232) (describing the power of unchecked prosecution).
456. Civil Service Reform Act of 1978, Pub. L. No. 95-454, 92 Stat. 1111 (1978) (codified as amended in scattered sections of 5 U.S.C);
457. see supra note 200.
458. See 5 U.S.C. §§ 1205-1208 (2006).
459. 5 U.S.C. § 4301 (2)(F)-(G) (2006);
460. see supra note 200.
461. See Jay Mathews, Lawyer's Firing Prompts Hill Inquiry, WASH. POST, Dec. 27, 1984, at A5. The firing of Navy Ocean Systems Center general counsel, Stephen Stowitz, spuned Congress's legislation in the excepted service, due process area.
462. Jay Mathews, Attorney's Legal Battle With Navy Gets a Twist, WASH. POST, NOV. 1, 1987, at A26.
463. Civil Service Due Process Amendments, Pub. L. No. 101-376, 104 Stat. 461 (1990) (codified as amended at 5 U.S.C. § 7511 (2006)).
464. See 5 U.S.C. § 7511(a)(1)(c). Compare McGregor v. Greer, 748 F. Supp. 881, 884 (D.D.C. 1990) (finding an AUSA without a due process cause of action to challenge her removal prior to the Civil Service Due Process Amendments)
465. with Van Wersch v. Dep't of Health & Human Servs., 197 F.3d 1144, 1148-49 (Fed. Cir. 1999) (noting that the Civil Service Due Process Amendments were intended to give excepted-service employees a basis to challenge adverse employment actions).
466. See 5 U.S.C. § 7511(b)(1)-(3) (2006).
467. See discussion infra Section III.B.
468. See discussion supra Part I.
469. See Morrison v. Olson, 487 U.S. 654, 691 (1988) (stating that despite the fact that the IC was an executive officer, "we cannot say that the imposition of a 'good cause' standard for removal by itself unduly trammels on executive authority").
470. The Act was first enacted in 1978. Id. at 660 n.1 (citing Pub. L. 95-521, 92 Stat. 1867). The amended version of the Act at issue in Morrison and discussed here is codified at 28 U.S.C. §§ 591-599 (2000).
471. See § 596(a)(3) for an IC's ability to challenge her removal in the U.S. District Court for the District of Columbia.
472. Morrison, 487 U.S. at 671.
473. See 28 U.S.C. § 592 (2000).
474. The Act provided: An independent counsel appointed under this chapter may be removed from office, other than by impeachment and conviction, only by the personal action of the Attorney General and only for good cause, physical or mental disability (if not prohibited by law protecting persons from discrimination on the basis of such a disability), or any other condition that substantially impairs the performance of such independent counsel's duties. 28 U.S.C. § 596(a)(1) (2000).
475. 28 U.S.C. § 596(a)(2) (2000).
476. "Each United States attorney is subject to removal by the President." 28 U.S.C. § 541(c) (2000).
477. See supra note 290 and accompanying text.
478. See supra note 285 and accompanying text.
479. See Morrison v. Olson, 487 U.S. 654, 711 (1988) (Scalia, J., dissenting).
480. See id. at 691 (majority opinion).
481. See Flaherty, supra note 112, at 1821, 1828-32.
482. See Morrison, 487 U.S. at 7.12 (Scalia, J., dissenting);
483. Abner S. Greene, Checks and Balances in an Era of Presidential Lawmaking, 6.1 U. CHI. L. REV. 123, 175 (1994);
484. Lee S. Liberman, Morrison v. Olson: A Formalistic Perspective on Why the Court Was Wrong, 38 AM. U. L. REV. 313, 345-46 (1989).
485. See, e.g., Flaherty, supra note 112, at 1835-36;
486. Peter L. Strauss, Formal and Functional Approaches to Separation-of-Powers Questions - A Foolish Inconsistency?, 72 CORNELL L. REV. 488, 523-24 (1987) (discussing accountability and balance in a pre-Morrison discussion of Bowsher v. Synar, 478 U.S. 714 (1986)).
487. 28 U.S.C. § 596(a)(2) (2000).
488. See discussion supra Part I.
489. See discussion supra Part I.
490. See Wiener v. United States, 357 U.S. 349, 354-56 (1958);
491. supra notes 145-159, 249-256 and accompanying text;
492. infra notes 310-318 and accompanying text.
493. See supra notes 145-151 and accompanying text.
494. See discussion supra Section II.A;
495. infra notes 311, 317 and accompanying text.
496. See discussion supra Section II.A;
497. infra notes 311, 317 and accompanying text.
498. Flaherty, supra note 112, at 1835-36.
499. Merit Selection for United States Attorneys Act of 1978, H.R. 105.14, 95th Cong. § 2 (1978).
500. See Morrison v. Olson, 487 U.S. 654, 691 (1988) ("[T]he real question is whether the removal restrictions are of such a nature that they impede the President's ability to perform his constitutional duty, and the functions of the officials in question must be analyzed in that light.").
501. This argument could be particularly compelling when a court considers a desire for some prosecutorial independence in this calculus. See id. at 689-92 (noting that a good-cause removal limitation in the case of the IC, for which some independence from the president was desired, cannot be deemed to "unduly trammel[] on executive authority").
502. Prosecutorial Independence: Is The Department of Justice Politicizing the Hiring and Firing of U.S. Attorneys? - Part III: Hearing Before the S. Comm. on the Judiciary, 110th Cong. (Mar. 29, 2007) (testimony of D. Kyle Sampson, former Chief of Staff to the Art' y Gen.).
503. The Bush v. Gore analogy is drawn from Professor Michael Dorf's blog.
504. See Posting of Michael C Dorf to Dorf on Law (Mar. 19, 2007, 08:19 EST), supra note 223;
505. Bruce A. Green & Fred C. Zacharias, Prosecutorial Neutrality, 2004 WIS. L. REV. 837, 858-70.
506. 531 U.S. 98 (2000). Many commentators have discussed the issue of partisanship, distinct from something like politics as a proxy for policy. Jack. M. Balkin, Bush v. Gore and the Boundary Between Law and Politics, 110 YALE L.J. 1407, 1408-09 (2001);
507. Jesse H. Choper, Why the Supreme Court Should Not Have Decided the Presidential Election of 2000, 18 CONST. COMMENT. 335, 347 (2001) ("[I]t is critical to distinguish between judicial (or jurisprudential) ideology and political ideology (or crude partisanship).") ;
508. Sanford Levinson, Return of Legal Realism, THE NATION, Jan. 8, 2001, at 8;
509. see Bruce Ackerman, Off Balance, in BUSH V. GORE 192, 197-98 (Bruce Ackerman ed., 2002);
510. see generally Guido Calabresi, In Partial (but not Partisan) Praise of Principle, in BUSH V. GORE, supra, at 67, 71-77;
511. ALAN M. DERSHOWITZ, SUPREME INJUSTICE: HOW THE HIGH COURT HIJACKED ELECTION 2000 4-10, 116-17, 194 (2001);
512. cf. CASS R. SUNSTEIN ET AL., ARE JUDGES POLITICAL? AN EMPIRICAL ANALYSIS OF THE FEDREAL JUDICIARY 129-56 (2006) (discussing judges' political parties and judicial decision making, particularly on hot "political" issues, but not deploying the same attacks of illegitimacy as the commentators critiquing Bush).
513. Balkin, supra note 312;
514. Choper, supra note 312.
515. Balkin, supra note 312, at 1408-09;
516. Choper, supra note 312, at 347-52.
517. See Balkin, supra note 312, at 1408-09
518. (citing Levinson, supra, note 312, at 8).
519. See Choper, supra note 312, at 348.
520. Compare DERSHOWITZ, supra note 3.12;
521. Ackerman, supra note 312;
522. and Balkin, supra note 312
523. with RICHARD A. POSNER, BREAKING THE DEADLOCK: THE 2000 ELECTION, THE CONSTITUTION, AND THE COURTS (2001);
524. Nelson Lund, An Act of Courage, WKLY. STANDARD, Dec. 25, 2000, at 24
525. reprinted in FLORIDA 2000: A SOURCEBOOK ON THE CONTESTED PRESIDENTIAL ELECTION 291 (Mark Whitman ed., 2003);
526. and Laurens Walker, The Stay Seen Around the World: The Order That Stopped the Vote Recounting In Bush v. Gore, 18 J.L. & POL. 823 (2002).
527. See discussion supra Part I.
528. 411 U.S. 792 (1973);
529. see also 42 U.S.C. § 2000e-2(a) (2000).
530. HAROLD S. LEWIS, JR. & ELIZABETH J. NORMAN, EMPLOYMENT DISCRIMINATION LAW AND PRACTICE 181-92 (2d ed. 2004).
531. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993) (holding that a plaintiff's showing of pretext through the most indirect means allowed by McDonnell Douglas, simply convincing the trier of fact, permits but does not require judgment for the plaintiff);
532. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981) (holding that the employer's rebuttal burden could only be discharged through evidence clearly demonstrating the proffered reason for discharge).
533. See discussion supra Section III.B.4.
534. See discussion supra Section II.A;
535. supra note 308 and accompanying text.
536. McDonnell Douglas, 411 U.S. at 802.
537. Id. at 804.
538. See discussion supra Part I.
539. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 509-11 (1993).
540. See, e.g., Conyers Memo, supra note 21, at 19, 27, 30-31.
541. One commentator has noted the similarities of the USA firings to the McDonnell Douglas inquiry and the potential utility of importing the burden-shifting framework to thinking about the USA firings. Posting of Brad Wendel to Legal Ethics Forum, http://legalethicsforum.typepad.com/blog/2007/03/ thinking_about_.html (Mar. 19, 2007, 13:46 EST).
542. 541 U.S. 267, 271-73 (2004).
543. Vieth, 541 U.S. at 281.
544. See id. at 317 (Stevens, J., dissenting);
545. id. at 343 (Souter, J., dissenting);
546. id. at 355 (Breyer, J., dissenting).
547. Id. at 346 (Souter, J., dissenting).
548. Id. at 344.
549. Id. at 347-51.
550. Id. at 351.
551. E.g., Mitchell N. Berman, Managing Gerrymandering, 83 TEX. L. REV. 781, 782 (2005) (arguing that Vieth created significant uncertainty because the plurality insisted that partisan, genymandering was not justiciable despite all of the Justices' agreement that excessively partisan gerrymandering is unconstitutional);
552. Guy-Uriel E. Charles, Democracy and Distortion, 92 CORNELL L. REV. 601, 603-04 (2007) ("[T]he Court... failed to resolve several... important issues [related to gerrymandering and] .... is utterly at sea with respect to its role in policing the manipulation of democratic outcomes by political elites.");
553. Michael S. Kang, When Courts Won't Make Law: Partisan Gerrymandering and a Structural Approach to the Law of Democracy, 68 OHIO ST. L.J. 1097, 1097 (2007) ("After two prominent U.S. Supreme Court decisions on partisan gerrymandering during recent years, the law of partisan genymandering remains as muddled as beforehand.").
554. LEWIS & NORMAN, supra note 320, at 215.
555. Price Waterhouse v. Hopkins, 490 U.S. 228, 239 (1989).
556. Id. at 240.
557. See discussion supra Section III.A.