On the pleasure and privilege of the president

Okay, so we've heard so much about the "pleasure of the president" of late that I feel like I need a shower. The argument from the right is that, since the eight recently-fired federal prosecutors were appointed by the president, he has the right to fire them at will, right? Well, yes, and at the same time, a resounding no.

The confusion comes with the term "political appointment," which describes the process by which such prosecutors get their jobs. It means the jobs are partisan, having to do with politics, right? Wrong. "Political" simply means that recommendations are made by politicians and appointments are made by the president. Once appointed, prosecutors are expected to be not even bipartisan but apolitical - they are officers of the court, and as such, they are expected to execute justice fairly regardless of party affiliation.

And that's where "serving at the pleasure of the president" becomes a little bit trickier, because if the pleasure of the president is served with a slate of prosecutors who are politically motivated, the apolitical nature of federal law is compromised. If the prosecutors in question had, in fact, been dismissed for "performance related" reasons, no one can question the rectitude of the dismissal. If, however, a prosecutor who was a "diverse up-and-comer" two years ago is now being asked to resign after declining to indict a politician who happened to be a Democrat, questions might be asked.

The solution, then, is to hold an investigation and question all parties involved to discern whether the prosecutors were fired for reasons of politics or performance. Two key parties in that investigation would be former White House counsel Harriet Miers and Bush puppetmaster Karl Rove - if Congress can get access. Which they can't do. Because Bush has refused to compel his buddies to testify on the record, under oath. The best he's willing to allow is an un-sworn, off-the-record conversation. Why? Executive privilege.

Executive privilege is, in essence, the right for the president to speak with his advisors candidly to make the best decisions he can make. And that makes sense. It isn't designed to help a president hide evidence of wrongdoing, though, and when Nixon tried to invoke executive privilege to resist a Grand Jury subpoena for the Watergate tapes, this is what the Superme Court had to say:

The President's need for complete candor and objectivity from advisers calls for great deference from the court. However, when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises. Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in camera inspection with all the protection that a district court will be obliged to provide. (Quote courtesy of the Court, emphasis courtesy of Glenn Greenwald)

Back in 1998, another president tried to use executive privilege to resist a subpoena - Bill Clinton during the Monica Lewinsky scandal. All told, 31 of Clinton's top aides testified under oath, on the record, on 47 different occasions. 'Twas said in an op-ed on the subject,

Evidently, Mr. Clinton wants to shield virtually any communications that take place within the White House compound on the theory that all such talk contributes in some way, shape or form to the continuing success and harmony of an administration. Taken to its logical extreme, that position would make it impossible for citizens to hold a chief executive accountable for anything. He would have a constitutional right to cover up.

Chances are that the courts will hurl such a claim out, but it will take time.

One gets the impression that Team Clinton values its survival more than most people want justice and thus will delay without qualm. But as the clock ticks, the public’s faith in Mr. Clinton will ebb away for a simple reason: Most of us want no part of a president who is cynical enough to use the majesty of his office to evade the one thing he is sworn to uphold — the rule of law. (Emphasis courtesy of Think Progress)

Who said it? Tony Snow.

Except this time around, he feels "prestty comfortable with the constitutional argument."

It's kind of middle-school logic, I know, but if you're not planning on lying, why would you object to swearing an oath? If everything you're about to say is on the level, why would you object to a transcript being made of it? Non-testimony, behind closed doors, unsworn, with no transcript, has slightly less binding power than an overcooked spaghetti noodle; if you're unwilling to get as close as a pinkie swear to the accurate truth, your motives can and should be called into question.

The subpoenas are coming. If, as the president claims, the wrongdoing extends no further than "mistakes have been made," it's going to have to go on the record. Scary, huh, being held accountable for the things you say and do.