A Hat-Tip To Jimmy's AG

There's not much I like about Jimmy Carter and his administration, now long-gone but continuing to cause problems. I found one today in, of all places, the LATimes.

There, an op/ed by Pepperdine constitutional law prof Douglas W. Kmiek describes how Carter's AG Griffen Bell stood up to Carter, and in doing so protected the separation of powers guaranteed by the Constitution.

In the aftermath of Watergate, President Carter directed Atty. Gen. Griffin Bell to prepare legislation that would make the attorney general an appointed post for a definite term, subject to removal only for cause. Carter's idea was to keep the attorney general independent of presidential direction to ensure that the Justice Department's authority would never again be abused for political purposes, as it had been during the ethically troubled Nixon presidency.

Despite Carter's noble intent, Bell refused. In a little-known memorandum to the president dated April 11, 1977, he explained why. Any law that restricted the president's power to remove the attorney general — and, by inference, to fire any U.S. attorney — would likely be found unconstitutional. The president, Bell reasoned, is held accountable for the actions of the executive branch in its entirety, including the Justice Department; he must be free to establish policy and define priorities, even in the legal arena. "Because laws are not self-executing, their enforcement obviously cannot be separated from policy considerations," Bell wrote.

Carter argued that the attorney general is different from other Cabinet officers. The job entails dual responsibilities: carrying forward White House policies like any other Cabinet official, and representing the law of the United States, whether it coincides with the president's policies or not. Bell agreed, but he found that insufficient to justify separating the attorney general and subordinate U.S. attorneys from presidential direction.

Chief Justice William Howard Taft's opinion in Myers vs. United States (1926) was the foundation of Bell's position, Kmiek writes.

Congress enacts different types of laws, the chief justice opined. Some laws require close supervision by the president, while others draw upon the expertise found within the specific agencies of government. Much law, however, generally empowers the executive, and when subordinates perform these functions, "they are exercising not their own but [the president's] discretion," the court said. "Each head of a department is and must be the president's alter ego in the matters of that department where the president is required by law to exercise authority."

The court's analysis did not deny the unique nature of the Justice Department. Indeed, Taft acknowledged that there may be duties that require evenhandedness from executive officers, "the discharge of which the president cannot in a particular case properly influence or control."

Kmiek notes that the Senate has every right to inquire whether the White House or AG AG's minions sought to improperly influence a particular case, but "has no legitimate basis to object if it turns out the U.S. attorneys were removed because they failed to bring the cases the president or his attorney general sought to give emphasis."

So it's up to AG AG: Can Gonzales convince the Senate that the eight went because they didn't follow directives, or were they fired because they refused to be political hacks pursuing cases wrought from politics, not law?

Talk about a grey area! It's just the sort of greyness in which the Dem leadership thrives -- and, I'm afraid, it's also the murky place that is beyond Gonzales' capabilities to clearly and forcefully illuminate. It's not that the facts aren't there for him to use; it's that the Bush Administration has a long record of being unable to forcefully defend itself.

This is as much a non-scandal as the Plame Game, which the administration was incapable of stopping, and it's looking like only the Dems took lessons from Plame. They've become as capable as making something out of nothing as the GOP has become incapable of stopping them.

hat-tip: Real Clear Politics