US Attorney Firings and Game Theory.

[OnyxCollie]

None Dare Call It Treason:
An Examination of Constitutional Checks and Balances During the Bush Administration
©2009 blackops


“If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.”
-PUBLIUS (James Madison), The Federalist No. 51


“As usurpation is the exercise of power, which another hath a right to; so tyranny is the exercise of power beyond right, which no body can have a right to.”
-John Locke, Second Treatise on Government


The framers of the United States Constitution anticipated battles over the balance of power, or game, and so designed the document to establish three branches of government, each with a grant of authority to provide a series of checks and balances upon the other. These checks and balances, or rules, prevent a disproportionate accumulation of power. Why is this necessary? It is necessary because human nature is self-interested and will seek that through which it can benefit.

Actions requiring the application of these checks and balances are not made in a vacuum; instead, these are choices, or moves, made by actors who understand the cost and benefits of their decisions and choose that which best serves their interests. Analyzing the possible outcomes of all the different moves allows for the formation of a strategy. This strategy is dependent upon expectations of an opponent’s moves according to the rules. The goal of this strategy is to control the balance of power, which Waltz (1954) describes as “the capacity to produce an intended effect” (p. 205).

This paper will examine the effectiveness of the Constitution to counter self-interested motivation. Specifically, it will apply two hypotheses to test the efficacy of checks and balances over the course of the present administration.

Hypothesis One: The rules regarding the power to appoint interim United States Attorneys been changed in ways to allow for partisan gain
Hypothesis Two: The changed rules have rendered ineffective the legislature’s powers to investigate.

This paper will use sources including the Constitution, Federalist Papers Nos. 51 and 77, multiple Supreme Court cases, essays on rational actor models and game theory, and news reports from The Washington Post and The New York Times to evaluate these hypotheses. It will first define the basic premises behind rational actor models and game theory. Following that, it will explain the rules that control the balance of power game. Next, it will describe the practices carried out by the current administration and the opposition party and assess the outcome.

Rational actor models and game theory, often used in economics, can be applied to explain the motivation and strategy behind politics. Monroe (1995) provides a synopsis of human behavior traits used in rational actor theory: Actors pursue goals to benefit their self-interest, and doing so involves a conscious choice, one that is based on preferences consistent with the best outcome, and this choice is made through a cost/benefit analysis. There can be multiple goals pursued in the game of obtaining power; however, one goal that is consistent is self-preservation (Waltz, 1954). In politics, self-preservation means election and reelection. Competition arises when actors with incongruous agendas are unable to collude and must vie for a shared market (Moorthy, 1985).

The choices made in this game are with done with an understanding of the consequences of both the initiator’s actions and the opponent’s moves. Moorthy (1985) refers to this as “interdependence” (p. 262). The actors in this game conduct their moves with an understanding of the rules and awareness that their opponents know the rules and expect all participants to follow suit (Moorthy, 1985). However, as the stakes in the game are so high, one actor may choose to ignore the rules to meet the goal. The opponent, lacking an understanding of the motivation for the dispensing of the rules, if he is even aware at all of the change, is at a great disadvantage and must alter his strategy accordingly to avoid an inevitable failure (Waltz, 1954). Opponents must consider then if it is better to adhere to the rules and risk losing, or abandon moral principles and forego following the rules to stay in the competition (Waltz, 1954).

Game theory is often applied to international politics. Due to the gravity of the game, extreme measures such as the use of force cannot be ruled out as possible options (Waltz, 1954). War is not an uncommon option to obtain goals, but engaging in war is dependent upon the amount of power held by the players. Chatterjee (1972) explains that if one competitor has significantly more power than the opponent, it could make convincing threats against the opponent with no likelihood of engaging in war due to a predetermined outcome. The resulting aggregation of power through the elimination of opponents jeopardizes the entire game (Chatterjee, 1972).

Now that the principles behind the rational actor model and game theory have been discussed, the rules can be examined. As had been mentioned above, the Constitution was designed with three branches of government, each with the authority to provide a series of checks and balances to maintain equilibrium of power. These branches are separate entities, yet they intertwine in certain areas to establish a stronger government. It is the independence of these branches that provide the reinforcement. Where a uniformity of thought and desire may lead to corruption, independence acts as a counterbalance. This independence should extend to the departments within each branch as well. As Madison (1788) had written in The Federalist No. 51:

…it is evident that each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others.

This paper will now analyze how these checks and balances are used to maintain independence in the appointment process for U.S. Attorneys and interim U.S. Attorneys. The Appointments Clause in Article II, section 2 of the United States Constitution states that:

The President shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: 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.

U.S. Attorneys are “officers” of the United States (Buckley v. Valeo, 424 U.S. 1 at 126 (1976)). U.S. Attorneys are subordinate to the Attorney General and are thus categorized as “inferior” officers (United States v. Gantt, 194 F.3d 987 at 999 (9th Cir. 1999)). The Attorney General sets the salaries for U.S. Attorneys, reassigns them to different cases at his discretion, and reimburses them for office expenses (id at 1000). The Attorney General’s authority over U.S. Attorneys is nearly complete, the one statutory limitation being the appointment (should Senate approval be granted) and removal power of U.S. Attorneys, a power that Congress chose to vest in the President (id at 1000).

U.S. Attorneys are “inferior” officers under the Appointments Clause and as such Congress may, at their discretion, choose to vest the power to appoint them in the President, in the Courts of Law, or in the Heads of Departments. The “excepting clause” was challenged in Morrison v. Olson, 487 U.S. 654 (1988). The Court affirmed that interbranch appointments were not unconstitutional (id at 673). The Court stated that while it was common and suitable to vest the power to appoint inferior officers in the departments in which they would serve, the Constitution made no requirement to do so (Morrison, 487 U.S. 654 at 674, quoting Ex parte Siebold, 100 U.S. 371 (1880)).

U.S.C. 28, § 541(b) states, “Each U.S. Attorney shall be appointed for a term of 4 years. On the expiration of his term, a U.S. Attorney shall continue to perform the duties of his office until his successor is appointed and qualified.” Should a U.S. Attorney’s position become vacant, an interim U.S. Attorney must be appointed. The judiciary had held the power to appoint interim U.S. Attorneys “since the Civil War” (Gantt, 194 F.3d at 997, 998). This changed in 1986 when Congress enacted § 546(d) of U.S.C. 28, authorizing the Attorney General to “’appoint a United States Attorney for the district in which the office is vacant’ for 120 days” (Gantt, 194 F. 3d at 998, quoting U.S.C. 28, § 546(d)). After 120 days, the district court was authorized to appoint an interim U.S. Attorney to serve in the district until President appointed a U.S. Attorney and received Senate confirmation (id).

In United States v. Hilario, 218 F.3d 19 (2000), the constitutionality of district courts to make interim U.S. Attorney appointments was challenged. It was determined that by appointing members of the Executive Branch who serve the Judicial Branch, “judges ensure not only the enforcement of the laws but also an effective adversarial process” (id at 21). Additionally, Judge Cerezo, citing Morrison 487 U.S. 654 at 676, declared that the Court had recognized no encroachment on executive powers nor did it find an “inherent incongruity about a court having the power to appoint prosecutorial officers” (id at 22).

Interbranch appointments of interim U.S. Attorneys established an appointee’s independence. Judges had no authority to supervise or remove interim U.S. Attorneys, nor could they influence an interim U.S. Attorney’s performance (id at 23). The President’s power to remove an interim U.S. Attorney or appoint a new U.S. Attorney remained (id). The Attorney General could also reassign the interim U.S. Attorney to a different case (id at 24). Interbranch appointments could not then be found to violate the doctrine of separation of powers.

Writing in Federalist No. 77, Alexander Hamilton (1788) advised against the vesting of appointments into the departments to which the appointee would serve, predicting such appointments would lead to governmental instability and exposure to executive influence. Independence of interim U.S. Attorneys from their appointers is necessary to maintain integrity and avoid coercion. As the Court had stated in Berger v. United States, 295 U.S. 78 at 88 (1935):

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all, and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.

U.S. Attorneys are endowed with powers enumerated in 28 U.S.C. § 547, which allow them to:

(1) Prosecute for all offenses against the United States; (2) prosecute or defend, for the government, all civil actions, suits, or proceedings in which the United States is concerned; (3) appear in behalf of the defendants in all civil actions, suits or proceedings pending district against collectors, or other officers of the revenue or customs for any act done by them or for the recovery of any money exacted by or paid to such officers, and by them paid into the Treasury; (4) institute and prosecute proceedings for the collection of fines, penalties, and forfeitures incurred for violation of any revenue law, unless satisfied upon investigation that justice does not require such proceedings; and (5) make such reports as the Attorney General shall direct.

Because of the power commanded by the position of U.S. Attorney, independence and neutrality are crucial to avoid abuse. Partisan influence, coercion, or rewards for favors can turn the office of U.S. Attorney into a dangerous weapon against citizens. The Court addressed the threat posed by compromised U.S. Attorneys in Berger 295 U.S. 78 at 88:

…While he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one. …Improper suggestions, insinuations, and, especially, assertions of personal knowledge are apt to carry much weight against the accused, when they should carry none.

Given the potential to damage lives, careers, and reputations, it is essential that safeguards be in place to prevent U.S. Attorneys from miscarrying justice.

With the establishment of the rules, this paper will now observe the moves of the competitors in the balance of power game. The first move was to change the rules. In spite of the long-accepted, constitutionally sound, independence-preserving method of appointing interim U.S. Attorneys, the appointment process was radically changed with the reauthorization of the USA PATRIOT Act in 2006. Removed was the interbranch appointment from the district court; the Attorney General could now make interim U.S. Attorney appointments. Also eliminated was the 120 day period that interim U.S. Attorneys could stay in office before a district court could appoint an interim U.S. Attorney to fill the vacancy. Interim U.S. Attorneys could now remain in office indefinitely, or until the President appointed a U.S. Attorney to the district. Interim U.S. Attorney appointments bypassed Senate confirmation, leaving the determination of qualification to the Justice Department.

The insertion of this new clause into the reauthorization of the USA PATRIOT Act went unnoticed. Senators were at a loss to explain how the clause made its way into the bill. It was later determined that the Justice Department had requested Brett Tolman to insert the clause into the bill (Kiel, 2007). At the time the clause was inserted Mr. Tolman was a counsel to the Senate Judiciary Committee, of which is Sen. Arlen Specter (R-PA) is a member. Sen. Specter responded to inquiries about his involvement with the clause by saying, “I do not slip things in” (Kiel, 2007, p. 1). According to Sen. Specter, the principal reason for the change was to resolve “separation of power issues” (Kiel, 2007, p. 2). The Senate voted to repeal the clause in February 2007 (P.L. 110-34, 2007). Mr. Tolman is now a U.S. Attorney for the state of Utah.

The changes came to light in December 2006 when eight U.S. Attorneys were forced to resign their posts, seven of them resigning on the same day (U.S. Dept. of Justice, 2008). One of the U.S. Attorneys was in the process of an investigation. Carol S. Lam had just successfully prosecuted congressman Randy “Duke” Cunningham (R-San Diego, CA) of accepting bribes in return for steering in excess of $70 million to two defense contractors (Pincus, 2006). Ms. Lam was forced to resign after indicting Kyle “Dusty” Foggo, the no. 3 man at the Central Intelligence Agency, who had connections to Brent Wilkes and Mitchell Wade, two men involved in the Cunningham scandal (Pincus, 2006). On February 19, 2008, Mr. Wilkes was convicted of bribery, conspiracy, and fraud and was sentenced to 12 years in prison (Eggen, 2008). Mr. Foggo was convicted of corruption on September 29, 2008 (Johnston, 2008).

The reason the government provided for Ms. Lam’s departure was that she refused to prosecute immigration cases (Steinhauer and Lipton, 2007). However, a review of court records spanning five years had shown Ms. Lam to be ranked among the top 10 of the 93 U.S. Attorneys for prosecutions and convictions, with immigration cases providing the bulk of her prosecutions (McCoy and Johnson, 2007).

U.S. Attorney Margaret Chiara was asked to resign in November 2006. Ms. Chiara claims to have been notified by the Justice Department to resign from her post in order to make way for “an individual they wanted to advance” (Lipton, 2007, p. 1). The Justice Department cited poor performance and low office moral as the reasons for her dismissal, yet Ms. Chiara said her office had increased felony convictions by 15 percent (Lipton, 2007). Recounting an email exchange with Michael Elston, the deputy attorney general’s chief of staff, Ms. Chiara said Mr. Elston had told her that she “erroneously assumed that good service guaranteed longevity” and that she and other U.S. Attorneys were “being asked for their resignations without good cause” (Lipton, 2007, p. 1).

U.S. Attorney Bud Cummins was forced to resign on December 20, 2006. Mr. Cummins’ replacement, Tim Griffin, was appointed to the position five days earlier (Arkansas Times, 2006). Mr. Griffin had previously worked for the Republican National Committee and had been an opposition researcher for presidential advisor Karl Rove (Satter, 2006).

U.S. Attorney John McKay was forced to resign on December 7, 2006. In a hearing before the Senate Judiciary Committee, McKay recounted a phone call he had received shortly after the November 2004 election from Ed Cassidy, then chief of staff to Rep. Doc Hastings (R-Washington) (Seattle Post-Intelligencer, 2007). Mr. McKay had said that the call was to inquire about an investigation into allegations of voter fraud in the close election win of Democratic Gov. Chris Gregoire. Mr. McKay withheld any comments about the investigation and “told Cassidy he was sure the call was not intended to suggest that Hastings was calling for a federal investigation, because that would be improper” (Seattle Post-Intelligencer, 2007, p. 1). The Republican National Committee and Gov. Gregoire’s opponent, Republican Dino Rossi, had brought a lawsuit forward to challenge the results of the election. Lacking evidence to support the claims of fraud, Judge John Bridges ruled against the plaintiffs (Seattle Post-Intelligencer, 2007).

Similar to Mr. McKay was the firing of U.S. Attorney David Iglesias. Mr. Iglesias received calls at his home by Sen. Pete Domenici (R-NM) and Rep. Heather Wilson (R-NM). Mr. Iglesias testified before the Senate that the calls were to question the progress of an investigation of voter fraud in the upcoming election of Rep. Wilson. Mr. Iglesias said he was pressured to bring an indictment before the election. According to Mr. Iglesias:

I was at home. This was the only time I’d ever received a call from any member of Congress while at home during my tenure as United States Attorney for New Mexico. …I recognized the voice as being Senator Pete Domenici. And he wanted ask me about the matters of the corruption cases that had been widely reported in the local media. I said, “All right.” And he said, “Are these going to be filed before November?” And I said I didn’t think so, to which he replied, “I’m very sorry to hear that.” And then the line went dead (Iglesias, 2007, as cited in McKay, 2008, p. 282, 283).

Conversely, of the U.S. Attorneys who were not fired, there were the “…80-85 percent, I would guess, who are doing a great job, are loyal Bushies, etc.” (Sampson, 2005, p. 1), who have been the subject of allegations of political prosecutions. A report from Professors Emeritus Donald C. Shields and John F. Cragan of the University of Missouri and Illinois State University respectively, shows that of 375 elected officials investigated and/or indicted, 10 involved independents, 67 involved Republicans, and 298 involved Democrats. “U.S. Attorneys across the nation investigate seven times as many Democratic officials as they investigate Republican officials, a number that exceeds even the racial profiling of African Americans in traffic stops” (Shields & Cragan, 2007, p. 1).

A July 2008 Justice Department report indicated illegal hiring practices based on political or ideological affiliations for career positions. The report stated that more qualified candidates were passed over in favor of political cronies. From the report:

Elston said that Goodling made it clear to him that she did not want Democrats detailed to the ODAG because she had a ‘farm system’ approach to filling vacancies in the Department, and she wanted to ‘credential’ Republicans so that they could move on to higher positions. Elston also stated that there were some Republicans that Goodling did not want to hire as detailees because they were not ‘Republican enough’ (U.S. Department of Justice, 2008, pp. 47, 48).

Emails released by the Justice Department and interviews conducted by congressional investigations revealed involvement by White House officials Karl Rove and Harriet Miers in the firing of the U.S. Attorneys (Jordan, 2007; Eggen and Solomon, 2007). The White House refused to cooperate, citing blanket executive privilege claims (Leahy, 2007). The claims of executive privilege were made despite any communication with the President regarding the U.S. Attorney firings (Holman, 2007).

Sen. Patrick Leahy had asked the White House to provide documents and testimony regarding the U.S. Attorney firings. In response, Sen. Leahy was repeatedly offered “an unacceptable ‘take it or leave it’ offer of limited document availability and off-the-record, backroom interviews with no transcript, no oath, and no ability to follow up” (Leahy, 2007, p. 3). Further attempts to accommodate the White House by the Senate Judiciary Committee and the House Judiciary Committee were refused (Leahy, 2007).

Mr. Rove, Ms. Miers, and White House chief of staff Joshua Bolton were subpoenaed to appear before the Senate and House Judiciary Committees (Kane, 2007). In a letter to George Manning, legal counselor for Harriet Miers, House Judiciary Committee Chairman John Conyers threatened to use inherent contempt (Conyers & Sanchez, 2007). Inherent contempt is a procedure where:

The individual is brought before the House or Senate by the Sergeant-at-Arms, tried at the bar of the body, and can be imprisoned. The purpose of the imprisonment or other sanction may be either punitive or coercive. Thus, the witness can be imprisoned for a specified period of time as punishment, or for an indefinite period (but not, at least in the case of the House, beyond the adjournment of a session of the Congress) until he agrees to comply. (Kaiser, Oleszek, Halstead, Rosenberg & Tatelman, 2007, p. 37).

None of the subpoenaed officials appeared and were later found to be in contempt of Congress (Kane, 2008; Washington in Brief, 2008). No further criminal action was brought against Ms. Miers and Mr. Bolton. Citing a 1984 legal opinion, Attorney General Michael Mukasey said that the refusal to appear before Congress “did not constitute a crime” (Eggen, 2008, p. A02).

In conclusion, it is apparent that the White House (and the Republican National Committee by extension) had changed the rules to obtaining power. U.S. Attorneys who prosecute high-ranking government officials could be removed from office. U.S. Attorneys could be removed from office and replaced by partisan operatives. U.S. Attorneys who refuse to prosecute voter fraud cases in swing states due to flimsy evidence could be removed from office. Political prosecutions were conducted to influence elections. Illegal hiring practices ensured solidarity.

The Administration, having changed the rules (and abandoned others), was able to predict the moves of its opponent. The Democratically-controlled Congress adhered to its moral principles and was submissive in the face of a greater power. The Administration offered little to Congressional investigators, and later when it became apparent there would be no retaliation or consequences, gave nothing.

The Bush Administration has subjugated the Constitution in its quest for power and none dare call it treason.

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