Who's "the Decider"?

Marty Lederman

The Attorney General is now in hot(ter) water because he assured the public two weeks ago that he had very little to do with choosing U.S. Attorneys to be dismissed, and now it turns out that just prior to the dismissals, he convened meetings devoted to that very subject.

It is, of course, troubling if the Attorney General was trying to hide the truth from Congress. But the alternative would be worse. The truth is probably somewhere in between -- or a few blocks down Pennsylvania Avenue, anyway.

As I explained last week, the White House is trying to make the case that the President had nothing to do with these dismissals -- that, in Tony Snow's words, "This is a decision that was made at the U.S. Department of Justice," and "The President has no recollection of this ever being raised with him."

This is, of course, nonsense. As the President himself stated, "the Justice Department made recommendations, which the White House accepted, that eight of the 93 would no longer serve." By law, the decision was the President's, and he (appropriately) exercised it, undoubtedly with the advice of his close advisers (which is the best-case scenario for what he meant when he said "the White House accepted").

The reason the White House wants to deny presidential involvement is to support its argument that congressional investigation into internal White House communications is simply irrelevant to the question of whether any laws or constitutional obligations were violated. (As I've noted previously, the most important limitation in the White House Counsel's offer is not that Rove, et al., would be testifying without oath, but that they would not answer any questions, nor provide any documents, concerning internal White House activities and communications.)

And so the White House endeavors to place the blame squarely on the sholders of the Attorney General. But it turns out he could not have done anything improper, either, because he delegated everything about the decision to others, too -- or so he said on March 13th: "So far as I knew, my chief of staff was involved in the process of determining who were the weak performers. . . . That is in essence what I knew about the process; was not involved in seeing any memos, was not involved in any discussions about what was going on. . . . Many decisions are delegated. . . . I never saw documents. We never had a discussion about where things stood. What I knew was that there was ongoing effort that was led by Mr. Sampson, vetted through the Department of Justice, to ascertain where we could make improvements in U.S. attorney performances around the country."

As we now know, this is unlikely to be entirely accurate. But if it were accurate, it would mean that the Attorney General delegated this very serious, unusual and sensitive function -- deciding to recommend that the President remove several U.S. Attorneys -- to an aide in his mid-30's who had virtually no experience or knowledge of institutional norms, and even less practical or political judgment, and that the Attorney General himself forwarded such recommendations on to the President without even bothering to check the evidence with respect to whether these U.S. Attorneys had done such a bad job in office as to justify the solemn step of firing them in midstream, i.e., without even knowing whether the removals would be justified or wise.

If this were the true story, it would demonstrate atrocious judgment on the part of the Attorney General, and would be much more troubling than the fact that he dissembled a bit in a press conference about the level of his own involvement.

We now know that it is not entirely true -- that Judge Gonzales convened at least one meeting shortly before the dismissals in which he was told of the plan. Presumably (at least one hopes), at that meeting he was given at least some indication about why these faithful public servants were being ignominiously dropped.

But I suspect there is at least some truth to his original claims of being mostly out of the loop. To be sure, Judge Gonzales probably did not inquire deeply into the details of the justifications for the removals. But it's also likely that he did not simply take Kyle Sampson's word for it -- something that would be virtually inexplicable.

The reason the Attorney General could be so hands-off about the entire mess was that the real decisionmakers -- the President's close aides, such as Karl Rove and Harriet Miers -- had already made their choices on who would be fired, and had "signed off" on DOJ's so-called "recommendations." The e-mail traffic I've seen shows that Sampson was taking his marching orders from Miers, her Deputy William Kelley, and Rove, who appear to have been orchestrating the affair from the outset. In a November 15 memo, for instance, Sampson urged Miers to reach out to Rove's office as a "pre-execution necessity I would recommend." The weeks went by, with Sampson waiting for the "green light" from the White House Counsel's office. On December 4, Kelley wrote to Sampson: "We're a go for the U.S. attorney plan. WHU leg (office of legislative affairs), political (office), and communications have signed off and acknowledged that we have to be committed to following through once the pressure comes."

Gonzales knew all of this, of course -- that this was a White House initiative that had been vetted carefully not only by his own Chief of Staff, but also by various components in the White House, who would recommend to the President that the removals be made. I should add that there is nothing wrong with this, and it's what one would expect, in any Administration, with respect to such an important exercise of the President's removal power. Indeed, the notion that this project would go forward in DOJ without White House leadership and guidance is virtually inconceivable.

What does this mean? Well, for one thing, it means that the current focus on the Attorney General is something of a distraction, at least insofar as Congress's objective is to determine whether anything unlawful or unconstitutional was involved in the U.S. Attorney dismissals. The real action was in the White House, and one cannot determine whether the removals were made for improper reasons unless one knows what Rove and Miers advised the President, and why they did so. But that's precisely the subject matter that Fred Fielding would put off-limits in his offer to allow questioning of those officials. [There's a great deal of chatter online, and from the likes of Charles Krauthammer, suggesting that these removals could not have been impermissible because the U.S. Attorneys serve at the President's pleasure. I have explained here why I think this is wrong -- why it is at least possible that certain criminal laws were violated or that the President and others acted in derogation of his constitutional obligation to faithfully execute the law. See also Josh Marshall's latest. I'm not saying that the removals were or were not unlawful or unconstitutonal -- merely that it's possible, and that the evidence adduced so far (and the absence of any coherent story about permissible reasons for the removals), leaves the question open.]

I should caution, in closing, that even if Congress were to receive full access to evidence from within the White House, Congress might not ever learn of what Rove and Miers actually said, or why they acted. They and their aides are very unlikely, in response to questioning, to expressly acknowledge that the U.S. Attorneys were fired for improper reasons (if that is in fact what happened); and it is entirely possible that there is no e-mail or other memorialized evidence explaining forthrightly why the decisions were made. (And if there are such smoking-gun documents, it is highly unlikely that the White House will ever disclose them, short of an order from the Supreme Court, which is itself a very uncertain prospect and would take at least a year.)
Posted 9:24 AM by Marty Lederman [link]