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Understanding the U.S. Attorney Firings

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Understanding the U.S. Attorney Firings

Politics

Understanding the U.S. Attorney Firings

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NEAL CONAN, host:

This is TALK OF THE NATION. I'm Neal Conan in Washington.

You may have seen headlines about a controversy over the firing of eight U.S. attorneys over the past week or so, and you might have questions. If federal prosecutors serve at the pleasure of the president, why is it a big deal if he dismisses them?

If just about president fires all 93 U.S. attorneys when he enters office, why is it a scandal to dismiss eight six years on? Were the prosecutors fired because they were incompetent or were the motives political? Will the White House allow senior aides, including Karl Rove, to testify to Congress about this, or will there be a battle over executive privilege and will this cost Attorney General Alberto Gonzales his job?

Today, questions and answers about the U.S. attorneys. Later on this week's Opinion Page, an Iraqi student recalls his joy when the invasion of his country began and his disappointment four years later.

But first, if you have questions about why eight federal prosecutors were fired and why it's a big deal, our number here in Washington is 800-989-8255. That's 800-989-TALK. The e-mail address is talk@npr.org. You can also join the conversation on our blog. That's at npr.org/blogofthenation.

And we begin with Jonathan Turley, a law professor at George Washington University and a criminal defense attorney. He's with us here in Studio 3A. Nice to have you back on the program.

Professor JONATHAN TURLEY (Law, George Washington University): Thank you very much.

CONAN: And the first question comes from our blog. A listener, Jeff Course(ph), asks about the legal underpinnings of this debate. I'm guessing, he writes, it has something with a tension between Article II, Section I, the executive shall be vested in a president, and in Article II, Section II, the president gets to appoint officers, on the one hand, and on the other hand the take-care clause, Article II, Section III: He shall take care the laws be faithfully executed.

Prof. TURLEY: Well that is certainly part of the tension because here the president is almost being accused, at least through his underlings, of obstructing his own justice, that here the accusation is that, particularly with people like Lam in California and some of these others who were doing corruption investigations, that there was an effort to get rid of them.

But really the tension I think moves a little bit beyond those specific articles. There's no question, as the White House says almost like a mantra these days, the president has the right to fire someone for good, bad, or no reason or at all. But that doesn't mean simply because you have the authority you can't abuse it. It also doesn't mean that you can lie about it for some of his underlings.

This is getting to be a worsening scandal because there is, in fact, some evidence that would indicate politics played a role. And if that's true, then it was an abuse of power and it would also make some of the statements to Congress rather clearly false.

CONAN: Well, that goes to our next question, also from our blog. David Johnston writes: Is this a criminal matter, the attorney general lying to Congress? We should clarify. He testified that no, this was not political, the White House was not involved. And a few days later some e-mails emerged, and he had to come back and say well, mistakes were made. It was political, or at least somebody at the White House had a role. Or is it, David Johnston continues, just unseemly and incompetent governance from this White House?

Prof. TURLEY: Well what a choice, eh? I'll take incompetence, someone is screaming from the White House. Well, the fact is that it is clearly a case of incompetence. That much, the attorney general has already fessed up to.

It, however, can become a criminal matter. Statements made under oath can lead to perjury prosecutions, and this is not the first time that Alberto Gonzales has been accused of either shading or hiding the truth to Congress. For some senators he appears a bit of a recidivist in that respect and they've lost, really, their patience with this.

There's also the question of whether other statements made to the Congress and the public are false. Whether these things grow into a criminal matter will really sort of depend as where we find the trail going here. It is a well-known fact that in Washington people more often go to jail for the response to a controversy than the original controversy itself, and this one is starting out in clearly that model.

CONAN: I think the attorney general has said - he has admitted that the testimony he gave to Congress was false. Whether he knew it was false when he gave it, I guess that's the issue.

Prof. TURLEY: That's right. And one of the issues here is also whether this is an act of willful blindness. You know, we've had the White House repeatedly tell the Senate that this guy testified, that guy testified, but it turns out they didn't know anything about the subject they were speaking about and you can't blame them if you didn't tell you the truth.

Well, there is a concept of willful blindness, that you can't just find some guy who's a blank slate who will go and testify with his conscience clear. It's getting to be a bit old in the Senate.

CONAN: Let's get a caller on the line. And by the way, if you'd like to join us, 800-989-8255, 800-989-TALK. E-mail is talk@npr.org. And I've hit the wrong button. Let's go to the right button, and this is Jason, Jason with us from San Antonio, Texas.

JASON (Caller): Hey, good afternoon.

CONAN: Good afternoon.

JASON: My question is just about the appropriateness of the firings, very simple question, actually. I know there's a lot to do with the attorney general and testimony before Congress, and as far as the fact that the U.S. attorneys serve at the pleasure of the president - why - that was one of your opening statements, as well.

Why is it such a big issue if the president chooses to fire eight or all of them? And in this case you seem to be addressing it, but it largely is the way in which it was handled and not necessarily the fact that it was done. Is that true?

Prof. TURLEY: No it's not true in one sense, Jason, in that it's not only how it was done. Let's go the first part of your question, and that is: Is there really any difference if you ink out eight instead of 93? And indeed people like Clinton did remove all the U.S. attorneys when he came into office.

But there is material difference that when a president comes into office for a first or second term, they are allowed to, and often are expected to, clear the decks. It's a very traditional measure, even if they're taking over from a person of their own party.

That sometimes raises eyebrows but it's really not much of an objection. Indeed, if they had fired everybody, they might have been better off because it would have shown that it had nothing to do except for an interest of opening up all these slots for new appointments.

It's not just that they cherry-picked, but it's the cherries themselves. They went around and picked those U.S. attorneys that were thorns in the sides of Republicans, in some cases at least, and that has raised serious questions.

And that gets us to your last question, and that is, you know, does it really matter what the motivation is. And the answer is yes, that even if you have absolute authority, you can abuse it. And one of the reasons Congress was given oversight by the framers was indeed to look into abuses.

So I think that is pretty much the case. Whether this all becomes criminal, we'll have to see. But I have to note that there are a lot of statements here that seem to be misleading and the White House is going to have to clear up.

JASON: Well, if I could ask one more question.

CONAN: Go ahead.

JASON: Thank you. There's a - I guess he's a conspiracy buff in my office, and so this is about Clinton firing all of the attorneys back when he came into office. There was a theory - and I don't know if this was ever true; and that's what I'm asking, if there's any truth to it - that one of the U.S. attorneys had some dirt as it were on President Clinton at the time and that his action in firing all of them was to do like you just said there, to avoid any appearance of inappropriateness by cherry-picking.

CONAN: By picking out that particular one who allegedly had dirt on him, yes.

JASON: Is that true? (Unintelligible), is that true?

Prof. TURLEY: I have that same guy working in my office. He gets around.

(Soundbite of laughter)

Prof. TURLEY: The thing is there's always these questions of conspiracy, and it could very well be true. You know, I was very critical of the Clinton administration, but it was never shown to be true. But you're absolutely right. You can take out the whole lot to sort of hide the marks of taking out the one you really want. It's pretty heavy-handed, but it's possible.

CONAN: The one we knew about was a U.S. attorney investigating Dan Rostenkowski, a very powerful Democratic Congressman. It seemed thought unseemly that he be removed in the midst of this investigation. Nevertheless, Dan Rostenkowski ended up going to jail.

Prof. TURLEY: That's right. And there was also a lot of skepticism about whether that was so unpleasant for the president that he would have taken an action to protect Rostenkowski. But more importantly, I think that the motivation for many presidents in firing all U.S. attorneys is really basic: They want to award people with these positions. These are really plumb positions to give some guy who's been a loyal soldier.

CONAN: Jason, thanks very much for the call.

JASON: Thank you very much. I love NPR and I love your program.

CONAN: Thank you for that. Let's bring another voice into the conversation. Doug Kmiec, chair and professor of constitutional law at Pepperdine University. He was head of the Office of Legal Counsel under President Ronald Reagan and under the first President Bush. He joins us from the studios of Pepperdine in Malibu, California. And it's good to talk with you again.

Professor DOUG KMIEC (Law, Pepperdine University): Good morning, Neal.

CONAN: And are these firings a big deal?

Prof. KMIEC: Well I think the president does, as has been ably presented by Professor Turley, has the ability to supervise the executive branch in its entirety, and that includes the ability to remove those who are not effective in their work. I think there were legitimate concerns being raised about a number of the individuals that were removed. The president doesn't need to specify those reasons. Indeed, I think as a matter of professional courtesy and respect who had served him in office he didn't specify those reasons. So I don't think it is as large a matter as it has been portrayed in the media thus far.

CONAN: Yet the president and the attorney general both said mistakes were made in how this was handled. Indeed, the attorney general has to sheepishly admit that he gave Congress false testimony.

Prof. KMIEC: Well, let's look at that a little more closely. To my knowledge, none of the individuals - who I have great respect for, by the way - who were dismissed have made any specific criminal charge against the attorney general or anyone in the Department of Justice. No one has specifically brought forth proof that there's been an obstruction of justice, that there's an attempt to specifically influence or impede an official proceeding.

What they have said is that they were involved in some high profile cases that involve matters of public corruption. And indeed, some of the complaints about them is that they perhaps were not as effective in some of those proceedings as should have been the case. In one case, for example - a case that was litigated against a state treasurer for corruption - a 24-count indictment was virtually entirely dismissed. That's not an example of effectiveness.

On the issue of Attorney General Gonzales's testimony, I actually think, Neal, it's more accurate to say that Paul McNulty was the person who is testifying before Congress about the nature of these firings. And it is true that he has called Senator Schumer to indicate that he did not fully disclose the extent to which the White House was involved because that had not been made known to him by the staff.

CONAN: All right. We're going to have to take a short break. If you have questions about how the eight U.S. attorneys were fired, why they were fired, and why it's a big deal, give us a call. 800-989-8255, 800-989-TALK. E-mail is talk@npr.org.

I'm Neal Conan. We'll be back after the break. It's the TALK OF THE NATION from NPR News.

(Soundbite of music)

CONAN: This it TALK OF THE NATION. I'm Neal Conan in Washington.

We're talking about U.S. attorneys and why the Bush administration saw fit to fire eight of them. Attorney General Alberto Gonzales has come under fire for his role in the scandal, with some bipartisan calls for his resignation. Our guests are Jonathan Turley, professor of law at George Washington University, and Doug Kmiec, chair and professor of constitutional law at Pepperdine University in Malibu, California. If you'd care to join us, 1-800-989-8255, 800-989-TALK. E-mail is talk@npr.org.

You can also read what other listeners have to say at our blog, npr.org/blogofthenation. And let's see if we can get another caller on the line. And we'll go to Ann(ph). Ann's with us from Clarence, New York.

ANN (Caller): Hi. It seems to me that part of the reason this is a big deal and that's not being talked about much is because of a provision in the Patriot Act that changes the system of checks and balances that oversees the process of placing people in these position. And I'm wondering if your guests can talk about that - the oversight, the checks and balances between the different branches, and how these positions are nominated and how this got into the Patriot Act and whether it was really seriously debated.

CONAN: Jonathan Turley?

Prof. TURLEY: Well first of all, let me reverse your questions. It got into the Patriot Act because very few people read it who voted on it. And it's one of the most embarrassing things about the Senate is that many of these senators have said, gosh, I never knew it was in there. And that left a lot of citizens scratching their heads, saying this must be a good job if you can get it. And so it got in there because at that time…

CONAN: What is the provision?

Prof. TURLEY: Well the provisions says that if the president makes an interim appointment like this one, that they do not have to come before the Senate for confirmation. That is, if you read its full meaning, it means that they could stay in office without ever appearing before the Senate. Now one thing that was stated by Alberto Gonzales is that this was not intended to run out the clock or would be used to circumvent Senate confirmation. And indeed, it is as serious as you say because we have at least one e-mail from Kyle Sampson. He was the gentleman that was recently removed who was at the center of this controversy.

And in that e-mail, he talks about the appointment of Karl Rove's own assistant to fill one of these seats. And what he says is that we should just, you know, get Tim in there - this is the guy's name, Timothy - and we'll just gum this out. We'll just, you know, wait him out, tell the Senate, you know, keep on communicating to the Senate and run out the clock. It was exactly what Alberto Gonzales said was not going to be done with this new power.

CONAN: Run out the clock. In other words, two years on when he'd lose his job anyway when the next president came in. It would be a moot case at that point.

Prof. TURLEY: Absolutely. And as you can imagine, anyone who's an assistant to Karl Rove, it would not be viewed immediately as a sort of resume item for U.S. attorney. He would have faced a very significant confirmation fight.

CONAN: Doug Kmiec, that I guess is a political appointment.

Prof. KMIEC: It's a little more subtle than that. With regard to U.S. attorneys, if they are nominated and the Senate doesn't act - prior to the Patriot Act one could appoint an interim U.S. attorney for 120 days. And if the Senate didn't act on that interim appointment during that period of time, then the federal court was required to make an interim U.S. attorney appointment. Neal, that raises a problem because you've got then one branch of government in which the attorney is going to be appearing making an appointment. There's the separation of powers tension there.

And so to correct that problem, the Patriot Act provision allowed the attorney general to make interim appointments for an unlimited period of time and not just for 120 days. It was always anticipated, and indeed the attorney general had made the commitment, that it was not for the purpose of circumventing Senate confirmation. It was instead for the purpose of removing this sort of awkward role that had been given to the federal district courts. And so…

CONAN: Yet that e-mail, doesn't it suggest that circumvention was exactly the idea here?

Prof. KMIEC: No, I think it suggests that the president would have greater latitude in terms of his appointment, because the ability of the president to make that appointment would be subject to less legislative interference in terms of getting the cooperation of a legislature from the home state who would take umbrage at a favorite of his being removed and someone else being appointed. I actually think…

ANN: It seems that this is one more provision in the Patriot Act which we, quote, "liberals," you know, were afraid of where checks and balances are ignored or lessened and it's easier for power to be concentrated in the hands of the president or the hands of politicians or political acts. And I think that's the important story here.

Prof. KMIEC: Ann, I think that's exactly right. You know, the separation of powers is, as Madison said, the concentration of all power in a single hand is the very definition of tyranny. I just think in this particular instance the motivation for the provision was actually more administrative than sinister. And in any event, the attorney general has said he's happy to live with the prior arrangement, and it seems to me that that's where Congress is going to take the matter.

CONAN: Ann, thanks very much for the call. Let's see if we can get another voice in on the conversation. Philip Heymann, law professor at Harvard University. He was deputy attorney general in the Clinton administration and assistant attorney general in charge of the criminal division under President Carter. He joins us from studios on the Harvard campus in Cambridge, Massachusetts. And it's good to have you on the program.

Professor PHILIP HEYMANN (Law, Harvard University): Thank you very much. It's a pleasure to be here.

CONAN: And do you think the attorney general is in serious political trouble here?

Prof. HEYMANN: I think he's in serious trouble if he turns out to have been lying in even relatively minor ways. And I think he's in serious trouble if it turns out that the reason a U.S. attorney was fired or asked to resign was for political reasons. There's - let me take the second one first.

CONAN: Mm-hmm.

Prof. HEYMANN: There's a lot of talk that goes around that one. I have known hundreds of U.S. attorneys in both administrations for a very long time. I dare anyone to come up with a single U.S. attorney who wouldn't reject a claim that the or she could be told to bring a case against a political opponent by the attorney general, who calls himself the CEO, or by the president. The discretion just doesn't go that far and the whole country would be in a panic if political figures could direct U.S. attorneys to bring cases based on politics.

The U.S. attorney is expected to decide based on the facts something that the attorney general and the president doesn't have, and he's not allowed to reduce the level of proof that he generally requires to bring a case against someone else.

(Soundbite of knocking on door)

Prof. HEYMANN: I think that's the heart of the issue with regard to politics. And if it turns out that firing these guys was a way of conveying a directive to be more responsive in bringing cases against opponents, Gonzales wouldn't survive that either.

CONAN: I just have to ask, are people knocking on the door at Pepperdine or knocking on the door at Harvard?

Prof. HEYMANN: Knocking on - did I say knocking on door?

CONAN: No, somebody was knocking on the door.

Prof. HEYMANN: No, they're not knocking at Harvard.

CONAN: Okay, then it must be at Pepperdine, and I hope we can work that out with Doug Kmiec. Let's see if we can get another caller on the line. And this is - let's go to Martin. Martin's with us from Concord, New Hampshire.

MARTIN (Caller): Hi. I have a couple of questions, actually. The first one relates to why we're not hearing discussion of a special prosecutor and potential criminal wrongdoings. And I understand the potential political fallout, but there also seem to be questions of criminal, potential at least, criminal wrongdoings. And the second question is, why do we continue to hear about the excuse of not following the Justice Department priorities. Wouldn't that have already been factored into most of the stunning performance evaluations that these people received already as a criteria for their performance?

CONAN: And by the way, I think they were talking about eight U.S. attorneys who were fired, seven of whom got glowing performance reviews. Or at least at some point before questions were raised the one in San Francisco apparently may have been let go for reasons of - questions about his competence. But Jonathan Turley?

Prof. TURLEY: Well, that really puts your finger on it. First to start with the initial question, it probably is too early to be talking about a special prosecutor until we really hone in on whether in fact there is evidence of perjury or obstruction of justice or abuses of power. If indeed we find that there is some evidence of that, I would be surprised if there were not such an appointment because it would be logistically impossible, in my view, to build firewalls around all the individual in this case. We're a little early on that.

But you really did put your finger on the entire problem with the claims made by the White House that many of these U.S. attorneys, on paper at least, look like an all-star team. I mean, they got glowing evaluations. On election stuff, Iglesias, who was fired…

CONAN: In Albuquerque, New Mexico?

Prof. TURLEY: …in Albuquerque, New Mexico, it was complained that he was not being sufficiently diligent or talented on elections matters. Well, he was invited repeatedly to come and train other attorneys on election matters, and he was viewed as one of the people in the Department of Justice that were really skilled in that respect.

So you have a sharp contrast between what they said before the firings, what they've said after. I don't think this is - as Doug suggested - just simply being polite and the president trying to, you know, spare their feelings. The problem is that these people all the way up to their firings were in communications with main justice, had no inkling anything was wrong, and were getting glowing reviews. And then they wake up one day and they're fired, or they're asked to resign. And that really is the rub of it.

Prof. HEYMANN: Let me put in a word here on Jonathan's point.

CONAN: Go ahead, please.

Prof. HEYMANN: This is Phil Heymann.

CONAN: Yes.

Prof. HEYMANN: Attorney General Gonzales announced his priorities in February of 2006, and election fraud wasn't one of his priorities. Now, suddenly, it's a question of not being loyal to the president by not pursuing his priorities. It's suddenly become a priority because these guys were fired. It wasn't a priority before. No one told them - Jonathan pointed out - no one told them they were failing to do anything. But there wasn't even a general directive to focus on election frauds out to the U.S. attorneys.

CONAN: And, Doug, I need to ask Doug Kmiec if he can hear us. Are you with us, sir? We're apparently still having problems with the line to Pepperdine University and…

Prof. HEYMANN: Let me say one more word…

CONAN: Go ahead, Phil Heymann.

Prof. HEYMANN: …about special prosecutors. Jonathan may have a - may know better on this, but I'm not at all sure that there is any crime, any federal crime that would be committed by directing a U.S. attorney to bring a case that he might not otherwise have brought. I think Congress ought to think about making that a federal crime. But I'm not sure there is. There's certainly a crime of trying to keep a U.S. attorney from bringing a case that he wants to bring, but I don't think it works the other way.

CONAN: Am I correct to say that the allegations of political motive are concentrated in New Mexico and the southern - in the San Diego district, the prosecutor who pursued Republican Congressman Duke Cunningham and may have been pursuing further alleged cronies of his, and in the case in Albuquerque, a prosecutor who was not as diligent as some Republicans may have hoped in pursuing voter fraud questions against some Democratic operatives? And, in fact, not as diligent as some have hoped as pursuing a corruption question about a prominent local Democrat?

Prof. TURLEY: Yes. There was one other, one of the U.S. attorneys had mentioned that he was also - he felt that he was subject to criticism after a high-profile case. I believe it's the one from Idaho, I can't put my finger on it, but that's right. There was a small number of them that have the clearest cases.

Iglesias is particularly bad because he actually got…

CONAN: At Albuquerque, yes.

Prof. TURLEY: Yes. He actually got phone calls from a senator and a member of Congress. And the member of Congress actually asked him, tell me about - what can you tell me about those sealed indictments - one of the most outrageous questions ever asked by a member of Congress to a prosecutor. I'm astonished he didn't really hang up the line. But I - those actually magnify the problem, because you've got two political figures who seem to be putting pressure upon the U.S. attorney to act. You have direct calls being made, inquiries about sealed indictments. And then it turns out the guy is ultimately let go.

CONAN: We're talking about - and thanks very much for the call, Martin - we're talking about the case involving the dismissal of eight United States attorneys. You're listening to TALK OF THE NATION from NPR News.

And let me just re-identify our guests: Jonathan Turley, a professor of law at George Washington University. He's with us here in Studio 3A. With us from Harvard, Phillip Heymann, professor of law at that university. And Doug Kmiec, are you back with us?

Prof. KMIEC: I'm back, Neal.

CONAN: I'm sorry for - I apologize for the technical problems and wanted to give you a go at this. The allegations of political motivations behind this -does that in itself raise questions about either legality or about good judgment?

Prof. KMIEC: It would if they're true. And I agree with Professor Heymann that if there is any evidence of perjury, if there's any evidence that politics is the basis for dismissing a case, obstructing a case, of preventing an investigation from being undertaken, that would be a highly serious matter.

But, again, I want to reiterate something that I believe is true. I believe that Alberto Gonzales is a person of integrity, and thus far no one has come forward with any specific evidence that he is obstructing, influencing investigations on the basis of political motivations. In these particular cases, U.S. attorneys originate as political appointees. So you can't take politics out of the process altogether.

In addition, it is not at all surprising, and it has been part of the history of the United States from the beginning, that presidents respond to people who complain to them about the performance of particular appointees. Indeed, that's the whole idea of giving the president removal authority. It ensures the accountability of subordinate officers. It ensures their effectiveness. It energizes them just to know that that authority exists.

Unfortunately, Neal, in these cases, we have several things going on. We have complaints being made about some of the people who were removed to the effect that prosecutions were not being brought, that they were not being particularly effective, that they were overlooking voter fraud, that they were - that their immigration prosecutorial policies had caused cases to drop precipitously. And in addition, you have the same offices involved with high-profile public corruption cases.

Now, if somebody was removed because you wanted to steer them away from the public corruption case - clearly wrong, clearly improper, possibly illegal if the wrong criminal - if the criminal intent could be proven. But if they're merely being removed because they were perceived as ineffective, even if they were perceived as ineffective by Republicans, that's not a violation of any law. It's not a violation of the Constitution, and indeed, it goes with the territory with accepting a political appointment.

CONAN: We're going to have to - Philip Heymann, I know you want to get in here, but we're going to have to take a short break.

Prof. HEYMANN: Okay.

CONAN: We'll continue this conversation when we come back. We'll also go to the TALK OF THE NATION Opinion Page and talk with an Iraqi journalist who saw signs of celebration four years ago after U.S. forces invaded his country. Four years later, he has questions about disillusionment and disappointment in Iraq. We'll be back after the break.

I'm Neal Conan. It's the TALK OF THE NATION from NPR News.

(Soundbite of music)

CONAN: This is TALK OF THE NATION. I'm Neal Conan in Washington.

In just a couple of minutes, we'll go to the TALK OF THE NATION Opinion Page. But let's continue our conversation. Questions and answers about the firings of eight U.S. attorneys. With us, Jonathan Turley, professor of law at George Washington University, Doug Kmiec, chair and professor of constitutional law at Pepperdine University, and Philip Heymann, professor of law at Harvard Law School. And let's see if we can get another caller on the line. And this is Michael. Michael's with us from Boston.

MICHAEL (Caller): Yes. Can you hear me?

CONAN: Yes, you're on the air, Michael. Go ahead.

MICHAEL: Thank you. First of all, on the U.S. attorney thing, what I'm wondering is, what would be a way to correct this problem from ever happening again? (unintelligible) should they be politically - should they be elected? But no would be - elections with the government's funding their elections?

CONAN: Mm-hmm. Should there be - why don't we take them one at a time, Michael? Should there, Doug Kmiec, the elections of U.S. attorneys as attorneys general in the various states are elected?

Prof. KMIEC: Well, I think, in fact, effectively, they are elected through the president of the United States. I don't think it's a good idea to subject subordinate officers to individual elections. I think you get far less uniform enforcement of the law that way. You get far less direct supervision. This really is a case about the importance of supervision and oversight in a responsible fashion. I don't think adding additional layers of electoral process would be advisable.

CONAN: Philip Heymann, isn't also one of the goals of a federal justice system to have consistency in Florida and Washington State, from Maine to San Diego or Hawaii, that if they're elected separately, you can have people with their own agendas?

Prof. HEYMANN: I don't like the election idea, either. But the consistency has to be in terms of overall priorities. It can't be in terms of whether a particular case should have been brought, because only the U.S. attorney has those facts. And it can't be in terms of whether U.S. attorneys are, in effect, inferior officers who ought to be obeying the president, because the president doesn't have any right to tell them to bring a case that doesn't measure up to the normal standards of that office.

CONAN: Okay. Michael, do I get another question?

MICHAEL: Yeah. Can I - the thing with the election part of it is, you say the president has the right to remove them if he hears some people who disagree with them. But that's not going to be me, it's going to be a lobbyist. And if they're investigating lobbyists, then that's who the president would hear from, and that's the problem with this whole political thing.

The other question was a very simple one, and I'll take my call off the air. Is when Bush first came into office, how many district attorneys did he replace at that point?

CONAN: They're not district attorneys, they're federal prosecutors. But go ahead, Jonathan Turley.

MICHAEL: Federal prosecutors. Right.

CONAN: Yeah.

MICHAEL: I'm sorry about that.

CONAN: It's okay.

Prof. TURLEY: Well, first of all, let me deal with the first aspect of that. And you're clearly right, that the people that the president will hear from are people that the president speaks to, and those are going to be powerful people, often of his own party. But does this mean that we want to go to an election system, which is going to add a layer of politics?

But for the - in the same way, as Philip was saying, you know, U.S. attorneys have an independent obligation to do justice as lawyers. And part of that obligation is not to pursue cases they think are not warranted. And so when the White House says, well, why don't you bring higher numbers of immigration or higher number of such terrorism cases - that really leads a lot of U.S. attorneys to begin to feel quite uncomfortable because it's not that they don't want to bring terrorism cases or immigration cases, it's often that they are trying to bring ones that they think are warranted.

And that also is why the scandal has been magnified by the role of Karl Rove. We know that Rove was involved in discussion early in 2005, apparently. We know that one of his aides was given one of these choice positions.

But any involvement of Karl Rove - a political adviser to the president - in removing U.S. attorneys would on its face be quite improper. And I think that is what's driving much of this.

CONAN: And let me ask - finally, our other two guests, Doug Kmiec and Philip Heymann. I guess tomorrow, the White House is scheduled to tell the Senate Judiciary Committee whether they're going to allow former and president White House counsel Harriet Miers and Karl Rove and others to testify before the committee. If not, we may see subpoenas. We may seem claims of executive privilege.

Is it the White House's right to say this is executive privilege, they cannot testify, and that's that, Doug Kmiec?

Prof. KMIEC: Well, it has always been the case that it's very unusual for the most close and intimate advisors of the president to give testimony before Congress. This is called the deliberative process privilege.

It's especially sensitive here, Neal, because to the extent that there's going to be discussions of open law enforcement investigations, those discussions themselves could actually have the perverse effect of undermining the very interests of justice that I'm certain the Senate Judiciary Committee wants to advance and I know the Department of Justice wants to advance.

So I think this is not an easy constitutional question, and I'm not at all surprised that the White House is seeking to minimize the amount of testimony that would need to be given, perhaps have it be given in an executive or closed session or provided in some other means.

CONAN: Philip Heymann?

Prof. HEYMANN: I don't think it's - I think they will refuse to have senior White House aides or any White House aide testify. I think they will have no great political difficulty doing that.

I think that is traditional, as Doug said, but I think the hearing is going to be interesting because it's going to ask, what was the failure in the case of different U.S. attorneys' offices that caused them to be fired? And was there discussion of that failure with them, or was there a priority set on the type of case on which they were thought not to perform?

And they're going to be asked, did anyone review the factual basis on which you declined to prosecute? All those answers are going to point towards politics as the simple answer - as the only answer.

CONAN: Clearly, not over by a long shot. And Jonathan Turley, I guess you have to have some feeling for Fred Fielding, the new White House counsel, who probably thought he'd heard the last of executive privilege many years ago.

(Soundbite of laughter)

Prof. TURLEY: Well, he was talking about taking a job in poor times. I'm sure he's looking back with fondness at his prior employment. I do agree with both Doug and Philip about it, although I have to say that deliberative process privilege doesn't have the weight in this circumstance as a classic executive privilege claim that has gone to court.

And I also think that the Senate is in a fighting mood. These senators, both Republican and Democrats, are hopping mad. I just testified last week on the Hill, and I heard an earful from some members, and they are very upset by what they consider to be a pattern of almost contempt by the administration.

So they might go to the mat on this. They might insist on an open hearing, and then the White House is going to have to make a choice. Usually, presidents have avoided court fights, particularly over things like deliberate process privilege that involves your purely political advisors as opposed to legal or national security advisors.

So I'm not too sure how it's going to go, but if I was in Fielding's position, I would not feel very comfortable right now in saying we're prepared to go to court and fight on this one.

CONAN: Jonathan Turley - professor of law at George Washington University and a criminal defense attorney - joined us here in Studio 3A. Thank you very much.

Prof. TURLEY: Thank you, Neal.

CONAN: Doug Kmiec, and thank you, we apologize for our technical problems there at Pepperdine.

Prof. KMIEC: Good to be with you, Neal.

CONAN: Doug Kmiec, chair and professor of constitutional law at Pepperdine University and head of the Office of Legal Counsel for President Ronald Reagan and the first President Bush. And Philip Heymann, we thank you for your time today.

Prof. HEYMANN: It's been a pleasure, Neal.

CONAN: Philip Heymann, professor of law at Harvard Law School, deputy attorney general under Janet Reno in the Clinton administration and assistant attorney general under - in the Carter administration. When we come back, The Opinion Page.

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