Prosecutor Purge Update

It's pretty clear that this gambit to fire US Attorneys who weren't sufficiently loyal to the President and the Republic Party is falling apart. First, the most egregious replacement, a former oppo research specialist and aide to Karl Rove who was installed as US Attorney in Arkansas, gave up the post rather than face a confirmation fight in the Senate. Actually he said he would stay on until a replacement is confirmed. Under current law, the White House never has to pick a replacement; that's the whole point. Under a little-seen provision of the Patriot Act, the Justice Department could install interim US Attorneys without having to go through the Senate.

The upshot of this purge is that the law will change.

Congressional Democrats and some Republicans are trying to change part of the USA Patriot Act that allows the Bush administration to fire and replace federal prosecutors indefinitely without Senate confirmation.

Freshly briefed by the Justice Department on the forced resignations of some of the seven U.S. attorneys since the act took effect, Senate Democrats planned to bring a bill to the floor Thursday that would impose a 120-day deadline on the amount of time a replacement could serve without Senate confirmation.

Of course, Sen. Reid tried to schedule a vote on this yesterday, but Sen. Jon Kyl blocked it on constitutional grounds. See, if the executive branch names no replacement within 120 days, under the new bill a federal judge would step in. Kyl claimed that raises separation of powers issues. Sen. Patrick Leahy had a good response to this:

I have heard not a word from the apologists who seek to use the Constitution as a shield for these activities about what the Constitution says. The Constitution provides congressional power to direct the appointment power. In Article II, the part of the Constitution that this Administration reads as if it says that all power resides with the President, the President’s appointment power is limited by the power of Congress. Indeed, between its provisions calling for appointments with the advice and consent of the Senate and for the President’s limited power to make recess appointments, the Constitution provides: “But the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the Heads of Departments.” Thus, the Constitution contemplates exactly what our statutes and practices have always provided. Congress is well within its authority when it vests in the courts a share of the appointment power for those who appear before them.

Funny how the separation of powers only comes up in the context of protecting executive authority, isn't it?

Carol Lam, who indicted Brent Wilkes and Dusty Foggo this week, has apparently moved on to work for Qualcomm, though some Democratic lawmakers would like her to prosecute the case as outside counsel. Regardless of that, Kyl and the other Bush apologists aren't going to be able to hold back this tide for long. The great prosecutor purge of 2007 will end, and another Administration power grab will be overturned. The problem is that they just don't quit.