The news that the Bush administration has replaced seven U.S. attorneys, none charged with or guilty of wrongdoing, with people fairly describable as Washington apparatchiks should give pause to all those concerned with America's working Constitution.
This was made possible by a provision of the Patriot Act allowing the president to make interim appointments of U.S. attorneys, a function previously confined to the federal district courts.
The office of U.S. attorney is far more powerful than it was at the time of the ratification of the Constitution. Its functions are no longer limited to federal specialties such as customs and revenue offenses, but extend to virtually the entire range of criminal offenses. Stringent federal sentencing guidelines have rendered federal prosecutions the prosecutions of first resort, even for certain street crimes. During the tenures of Attorneys General Janet Reno, John Ashcroft and Alberto R. Gonzales, the number of federal prosecutors has greatly increased.
As contemplated by Alexander Hamilton in the Federalist Papers, the requirement of Senate confirmation has operated to prevent the staffing of these positions with pliant presidential cronies. The local senators, particularly those of the president's party, in practice have nominated U.S. attorneys and normally have been concerned not to outrage the local bar. Although the appointees have always served at the president's pleasure, it has been possible to guard against politically motivated removals by vesting the power of interim appointment in federal judges, drawn from both parties. These judges have generally appointed senior career officials pending Senate approval of a new nominee.
The enthusiasts for unlimited executive power and a compliant Congress have changed this. But Article II, Section 2 of the Constitution expressly allows judicial appointing powers. Cases allow Congress to limit presidential removal powers on Justice Louis D. Brandeis' premise that the function of the Constitution was "not to promote efficiency but to preclude the exercise of arbitrary power."
In the wake of Watergate, Congress, at the urging of Attorney General Edward H. Levi, provided the FBI director with a 10-year fixed term to insulate him from presidential whims.
As the sweep of federal criminal jurisdiction widens, it is imperative that Congress thoroughly review the provisions for appointment and removal of all important federal law enforcement officials - not merely U.S. attorneys. The dispersion of police and prosecutorial power is the bedrock of American civil liberty. In all but two or three states, prosecutors are elected for short terms.
We do not want prosecutors to be laws unto themselves, and we do not want an elective dictatorship. Geographic dispersion of prosecutorial power, of which Congress has lately grown careless with its expansions of federal jurisdiction, has historically been the American answer to this problem. The growth of the central office of the Justice Department renders it imperative that old controls be reinstated and new ones devised.
The residents of the seven judicial districts affected by the new appointments do not yet have reason to remonstrate against an executive who has, in the language of the Declaration of Independence, "sent hither swarms of officers to harass our people and eat out their substance," but the new appointments - and the statute authorizing them - impair the influence of locally elected senators and overly aggrandize the federal executive.
George W. Liebmann, a Baltimore lawyer, is executive director of the Calvert Institute for Policy Research and the author of "The Common Law Tradition: A Collective Portrait of Five Legal Scholars."