Eloquent Incoherence

The Bush Administration recently fired seven U.S. attorneys. Firing a U.S. attorney is a drastic and rare action usually taken only in extraordinary circumstances (by comparison, of the 486 U.S. attorneys appointed between 1981 and 2006, only 3 were fired). The seven fired U.S. attorneys had solid resumes and good records, and some were replaced by candidates with weaker credentials but strong Republican connections. Particularly alarming was the dismissal of H.E. Cummins, a distinguished and well-respected U.S. attorney in Little Rock, Arkansas. Mr. Cummins was replaced with J. Timothy Griffin, a former deputy to Karl Rove who has limited legal experience but did opposition research for the Republican National Committee.

The position of U.S. attorney is a powerful and prestigious post; U.S. attorneys prosecute headline-grabbing cases involving terrorism, corporate misgovernance, corruption, and other high-profile crimes. U.S. attorneys have traditionally been insulated from political pressures and executive meddling, but Bush’s recent purges were made possible by a little-known provision of the Patriot Act that allows the president to appoint interim U.S. attorneys for an indefinite period without Senate confirmation. Adam Cohen’s column in the New York Times suggests three theories for this “political purge”:

1. Helping friends. Ms. Lam (one of the fired attorneys) had already put one powerful Republican congressman in jail and was investigating other powerful politicians. The Justice Department, unpersuasively, claims that it was unhappy about Ms. Lam’s failure to bring more immigration cases. Meanwhile, Ms. Lam has been replaced with an interim prosecutor whose résumé shows almost no criminal law experience, but includes her membership in the Federalist Society, a conservative legal group.

2. Candidate recruitment. U.S. attorney is a position that can make headlines and launch political careers. Congressional Democrats suspect that the Bush administration has been pushing out long-serving U.S. attorneys to replace them with promising Republican lawyers who can then be run for Congress and top state offices.

3. Presidential politics. The Justice Department concedes that Mr. Cummins was doing a good job in Little Rock. An obvious question is whether the administration was more interested in his successor’s skills in opposition political research — let’s not forget that Arkansas has been lucrative fodder for Republicans in the past — in time for the 2008 elections.

One of the greatest aspects of the system of government established by our founding fathers is the seperation of powers into executive, legislative, and judicial branches of government. No branch of government can amass too much power, and each branch acts as a check on the other branches. The process of appointing federal judges and U.S. attorneys (Presidential nomination followed by Congressional confirmation) is an important element of this separation of powers. The magnitude of Bush’s successful attempt to bypass the process can’t be understated. The Patriot Act’s sweeping expansions of executive power have enabled Bush to install cronies in powerful positions with the authority to investigate and prosecute (or, more importantly, the authority to refrain from doing so). These developments are alarming not only because of these immediate consequences, but because of the precedent they set in upsetting the delicate balance of authority that is a hallmark of American democracy. Though such excesses would normally be regarded as policies unbecoming of the United States, they seem to have become a sad reality of life under the Bush Administration.

The Dennis Pragers and Virgil Goodes of the world would do well to note that the prospect of a Muslim attaining elected office was raised during the course of constitutional debates in the formative period of the United States. After the Constitutional Convention presented its draft Constitution to the states for ratification in 1787, the North Carolina state legislature debated the merits of a guarantee of religious freedom and a bar against religious tests as a condition to holding public office, provisions the Convention’s draft did not contain. Rep. Henry Abbot, a Baptist minister and a proponent of a religious freedom clause, observed:

The exclusion of religious tests is by many thought dangerous and impolitic. They suppose that if there be no religious test required, pagans, deists, and Mahometans [Muslims] might obtain offices among us, and that the senators and representatives might all be pagans. Every person employed by the general and state governments is to take an oath to support the former. Some are desirous to know how and by whom they are to swear, since no religious tests are required–whether they are to swear by Jupiter, Juno, Minerva, Proserpine [sic], or Pluto. . . I would be glad [if] some gentleman would endeavor to obviate these objections, in order to satisfy the religious part of the society.

State commissioner James Iredell (who would later serve on the United States Supreme Court) addressed the concerns mentioned by Abbot:

But it is objected that the people of America may, perhaps, choose representatives who have no religion at all, and that pagans and Mahometans may be admitted into offices. But how is it possible to exclude any set of men, without taking away that principle of religious freedom which we ourselves so warmly contend for? This is the foundation on which persecution has been raised in every part of the world.

Governor Samuel Johnston elaborated:

Those who are Mahometans, or any others who are not professors of the Christian religion, can never be elected to the office of President, or other high office, but in one of two cases. First, if the people of America lay aside the Christian religion altogether, it may happen. Should this unfortunately take place, the people will choose such men as think as they do themselves. Another case is, if any persons of such descriptions should, notwithstanding their religion, acquire the confidence and esteem of the people of America by their good conduct and practice of virtue, they may be chosen.

This debate in the North Carolina legislature would play a pivotal role in shaping the notion of separation of church and state that would come to be a founding principle of American democracy. The legislature ultimately decided that a guarantee of religious freedom was a necessity, and North Carolina withheld its ratification of the Constitution on the grounds that it contained no affirmative declaration of rights. The Bill of Rights–and with it, the provisions guaranteeing religious freedom that would come to be known as the establishment clause and the free exercise clause–was subsequently added in response to North Carolina’s objections, and North Carolina became the 12th state to ratify on November 21, 1789. The rest, as they say, is history, though it seems to have escaped Dennis Prager and Virgil Goode.

Research in Motion, maker of the popular Blackberry wireless handheld devices, has filed a trademark infringement lawsuit against Samsung over the latter’s new Blackjack smartphone. I’m not quite sure what RIM is trying to accomplish here; their case is weak at best and seems to revolve around the fact that both products contain the word ‘black’. Perhaps the NTP debacle has driven RIM bat-shit crazy.