by Robert Delahunty and John Radsan · March 17, 2017
Many of President Trump’s opponents have lost their bearings. They behave as if every action Trump takes is an abuse of office simply because he is not the person they want in office. Unhinged and unrelenting in their attacks on the new administration, they now seem to question whether Trump’s attorney general is even allowed to follow Justice Department regulations, the Constitution, and the practices of presidents before Trump from both political parties.
Last week, Attorney General Jeff Sessions asked 46 holdover U.S. attorneys to resign (about half of Obama’s appointees had resigned before then). U.S. Attorneys (USAs) are the chief law enforcement officers within their particular federal districts or jurisdictions. The career prosecutors in an office, hundreds of them in some districts, stay in place, while USAs come and go.
By statute, USAs exercise their prosecutorial functions under the supervision of the attorney general. According to the “United States Attorneys’ Manual,” a Justice Department publication that provides authoritative guidance for USAs, they “are subject to removal at the will of the President.”
This Is Entirely Within Trump’s Purview
In confirmation of the president’s at-will authority to remove USAs, the manual cites the 1897 Supreme Court decision of Parsons v. United States. It held that even though Congress had provided USAs with four-year terms of office, the president nonetheless had the authority to “remove [a USA] when, in his discretion, he regards it for the public good.”
The president’s authority to remove USAs flows directly from the Constitution, which requires the president to “take care” that the laws be faithfully executed. Further, this authority is inherent in the Constitution’s vesting of the “executive power” in the president. As James Madison noted during the great congressional debate of 1789, “I conceive that if any power whatsoever is in the nature executive it is the power of appointing, overseeing, and controlling those who execute the laws.”
Recent presidents, in exercising constitutional prerogatives, have routinely removed holdover USAs from prior administrations. In May 2009, President Obama’s Attorney General Eric Holder told Congress that he expected to announce the firing of “our first batch of U.S. Attorneys . . . . [E]lections matter—it is our intention to have the U.S. Attorneys that are selected by President Obama in place as quickly as they can.”
Near the start of his first term, President George W. Bush, “continuing the practice of new Administrations,” discharged most of the then-93 USAs (nearly a third of whom had submitted their resignations earlier). In 1993, after Bill Clinton became president, his attorney general, Janet Reno, summarily discharged 93 of the 94 incumbent USAs. President Reagan replaced 89 of the 93 U.S. Attorneys in his first two years in office.
On Cue, Left Goes Nuts Over Mundane Action
Holder got it right: “elections matter.” Except, apparently, the election of President Donald Trump. When the request for resignations was announced, Democrats in Congress and their media enablers went, characteristically, into a frenzy.
Take Massachusetts Sen. Elizabeth Warren. In a flurry of tweets, Warren wrote, among other things: “[Trump] wants the entire US Attorneys’ Office to be run by his own corrupt buddies,” “you can’t fire the rule of law,” “he wants a bunch of tame prosecutors who won’t investigate him” and “[Trump is] not replacing real prosecutors with phonies w/out a massive fight.”
Never mind that Trump has not yet nominated anyone—let alone “corrupt buddies” and “phonies”—to replace the Obama holdovers. To Warren, any nominee that Trump sends up to the Senate simply must be a “corrupt,” “phony,” “tame” time-server. Such nominees will be greeted with scorched-earth tactics from these less than principled politicians. The mere fact that Trump has done what Obama, Bush, Clinton, and Reagan all did before him is enough to satisfy Warren that nothing less than the “rule of law” is at risk.
Also, note these absurdities are from a former Harvard Law School professor.
There Aren’t Even Practical Downsides
To the extent that Warren is grounded by any sort of rationality, she seems to assume that the dismissal of holdover USAs, notably Preet Bharara in Manhattan, would compromise ongoing investigations in those offices. Bharara, an Obama appointee and a “buddy” of Warren’s Democrat colleague Sen. Chuck Schumer, had pushed back against Sessions’ request and refused to resign. Bharara was promptly, unceremoniously, and correctly fired, achieving a martyr’s status in the eyes of Warren and the alt-Left.
If Warren thinks investigations in Bharara’s office will be abruptly closed by his departure, she is dead wrong. In announcing Sessions’ request, the Justice Department specifically stated that career prosecutors would continue existing investigations and prosecutions until successor USAs are installed.
Moreover, it is settled practice that once a USA leaves or is removed from office, a career prosecutor takes his or her responsibilities until a new USA is appointed. The “United States Attorneys’ Manual” plainly states that federal law “provides that the First Assistant United States Attorney shall serve as the Acting United States Attorney when a Presidentially-appointed United States Attorney either dies, resigns, or is unable to serve.”
In Bharara’s case, his deputy and friend, Joon Kim, a career prosecutor, will serve as the acting USA. Kim has had a highly distinguished legal career, having begun working in the USA’s office in 2000, returning in 2013. So the Trump administration did not, and indeed could not, abort any existing investigation or prosecution by ousting Bharara, or any other Obama appointees from office.
On this one, the attorney general should give Warren and her ilk the response they deserve. Because there is nothing to their arguments other than misinformation and paranoia, there is nothing further for to say. He should ignore them. As Mark Twain noted, to engage fools in further conversation only casts doubt on who is whom.