On Sunday, July 29, Chris Wallace interviewed Senator Russ Feingold on Fox News. Wallace observed that Democrats had received thousands of documents related to the firing of the U.S. attorneys. He asked if the Senator could point to one smoking gun that had been discovered in those documents indicating that a crime had been committed. The Senator stammered that he could not name specifics but that he was sure that a crime had been committed.
What crime this might be is never explained. The Democrats are angry because U.S. attorneys were apparently fired for failing to prosecute vote fraud. Democrats always hyperventilate about vote fraud. Whenever it is proposed that voters show photo identification and prove that they are the person they claim to be, Democrats recite sad stories of hypothetical voters who are destitute wretches and cannot afford to obtain photo ID. If, in fact, there is a citizen so poor that he cannot obtain photo identification, one must suppose that he is eligible for welfare, food stamps, and Medicaid. I don't suppose it would be asking too much for the destitute wretch to show the same identification he had to show to prove that he was a destitute wretch and qualified for welfare, food stamps, and Medicaid. Or, for that matter, that he must show in order to cash his welfare check. They seem not to have thought of that, but that is a story for another day.
Today’s story is the investigation into the firing of the US attorneys. The Senate Democrats, despite the resignation of the Attorney General, have said they will continue their investigation. It would be interesting to hear what it is they believe they are investigating. Senator Feingold said he was sure a crime had been committed although he had no specifics. Perhaps the Senate Democrats could put their fertile imaginations to work, temporarily laying aside the important task of dreaming up lurid hypothetical dangers for destitute voters, and try to imagine any hypothetical crime that might conceivably have been committed by firing the US attorneys. After all, one of the president's responsibilities, spelled out in the Constitution, is to "take care that the laws be faithfully executed." Since there are laws against vote fraud, for the president to tell US attorneys to prosecute vote fraud, one would think, is merely to carry out his obligation under the Constitution. If the Senate Democrats are upset about this, one must conclude that there are certain laws which they do not want to see “faithfully executed,” a constitutionally curious position to say the least.
The fact is, the Supreme Court has decided that once the Senate has given its advice and consent to the nomination of an executive branch employee, their oversight role is finished. In a decision written by Chief Justice William Howard Taft the Court says of the president's ability to remove his subordinates:
The moment that he loses confidence in the intelligence, ability, judgment, or loyalty of any one of them, he must have the power to remove him without delay. To require him to file charges and submit them to the consideration of the Senate might make impossible that unity and co-ordination in executive administration essential to effective action.
The case is Myers v. United States, 272 US 52, at 134 (1926). The Senate Democrats, as they continue their investigation into the imaginary crimes committed when the U.S. attorneys were fired may wish to ask their staff attorneys to explain his case to them. I'm sure they will have no trouble finding the case as it is one of the longest ever written. But don't ask the Justice Department for help on this as they appear not to be aware of the case. Even though Chief Justice Taft said that it was unnecessary to submit these decisions to the consideration of the Senate, the Gonzales Justice Department, inexplicably, has done just that.
A more appropriate response to the demand for documents would have been to tell the Senate that the documents would not be forthcoming and that the interests of the public would be better served if Senate Democrats would spend their time trying to repeat their performance in 1994, passing foolish laws in order to enrage the voters and cause Democrats, once again, to lose control of both houses of Congress for another 12 years. But that would be asking too much of an administration more determined to placate its enemies than to please its friends.