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Why Gonzales Should Go
Tuesday, 2007 July 24 - 10:46 pm
The full analysis.

By now, most people know that Attorney General Alberto Gonzales is under fire, and lots of senators are calling for his resignation. Many people even know that the matter concerns the firing of several U.S. attorneys in 2006, and that part of the investigation surrounds Gonzales' misleading and conflicting testimony to Congress about the matter.

But I've seen a lot of Republicans asking these questions:

- What law did Gonzales break?
- How can the firing and hiring of U.S. attorneys by Bush and Gonzales be illegal, when Clinton fired and hired all the U.S. attorneys when he took office?

Both Democratic and Republican bloggers are guilty of spewing a lot of hot air about this issue without knowing the facts. Democrats are acting outraged about Gonzales without knowing exactly why he's guilty, while Republicans are quick to defend him without bothering to research the law. So for everyone's benefit, let me try to work it all out.

It is true that U.S. attorneys can be fired at will by the President. And normally, U.S. attorneys can be hired by the President, even if the hirings are politically motivated. But to help avoid having the President stuff the legal system with political cronies, U.S. attorney appointments must be done with the advice and consent of the U.S. Senate. (U.S. Code Title 28, Chapter 35, Paragraph 541). In other words, the appointments must go through a Senate confirmation process, much like judicial appointments. So this is the process that Clinton and his predecessors followed, fully justified by law.

Now, if there is an unexpected vacancy for a U.S. attorney position, the Attorney General may appoint a replacement, under the terms in U.S. Code Title 28, Chapter 35, Paragraph 546. Prior to March 9 2006, and after June 14 2007, this sort of appointment was temporary, limited to 120 days.

However, between March 9 2006 and June 14 2007, this law was amended by bill reauthorizing the Patriot Act, in Section 502 of H.R. 3199. The bill changed the appointment from a temporary one to an indefinite one. This effectively changes the job into a "career appointee" in the Senior Executive Service, as defined by U.S. Code Title 5, Chapter 31, Paragraph 3132. Prior to the passage of H.R. 3199, U.S. attorneys were excluded from the Senior Executive Service because they were either confirmed by the Senate, or their appointments were temporary.

Why is this important? Because career appointees to the civil service are covered by anti-discrimination laws in U.S. Code Title 5, Chapter 23, Paragraph 2302. Specifically, Part (b)(1)(E) states that "Any employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority, discriminate for or against any employee or applicant for employment, on the basis of marital status or political affiliation, as prohibited under any law, rule, or regulation." (My emphasis.) There are a number of other proscriptions against politically-motivated actions specified in subsequent parts of the law.

* * *

So let me sum up. When they reauthorized the Patriot Act in 2006, they changed the nature of U.S attorney appointments that were done to fill vacancies, such that the appointments became subject to anti-discrimination laws. What Gonzales may have done wrong is to make politically-motivated appointments, bypassing the Senate confirmation process, in violation of the law. And then, he may have misled (or lied to) Congress about the act, after the fact. And on top of that, Bush may now be obstructing justice by incorrectly claiming executive privilege to block the Congressional investigation into the matter.

To avoid the possibility of such abuse in the future, the section regarding filling U.S. attorney vacancies was changed back on June 14 2007, such that the appointments were again made temporary.

Now, I admit that I've only done a couple of hours' worth of research into this matter, and there might be some things I've overlooked or misunderstood. But that's still a few more hours' worth of research than most people have done. If I've got anything wrong, please cite the appropriate federal laws and show me what I've missed.
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Posted by Ken in: politics

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