[edited]
There is a value in citing them, but I have only limited respect for those who -- after years of obvious problems -- have finally seen the light, turning against the President. This includes conservative Democrat sorts like this guy. We also should remember the nature of the animal in places like Texas. That is, they aren't quite very Democratic in many senses of the term. Likewise, it does seem that the use of John McCain as a favorite "independent voice" has run its course, huh? Hey, I too used that bit ... live and learn. But, by now, a bit too late.
Anyway, some of the burnt ex-Bush officials have also said some things that help the other side. Thus, fired prosecutor Bud Cummings (what is with these stupid first names? Bud was a character on Married ... with Children) has voiced disfavor. Per Daily Kos:
The president had an absolute right to fire us. We served at his pleasure, and that meant we could be dismissed for any reason or for no reason. And we all accepted that fact without complaint. When challenged by Congress, the leaders of the Department of Justice could have refused to explain. Or, they could have explained the truth. But apparently the truth behind some or all of the firings was embarrassing. So, instead, they said it was because of "performance." We didn't accept that, because it wasn't the truth.
As I have already noted, am surely am not alone is so doing, you have to look at the true depth of this scandal. It goes beyond lying to Congress and these few firings. Overall, we learn a mini lesson in constitutional dynamics. Things we take for granted suddenly are rather important and no longer so obvious and par for the course -- appointment/confirmation, congressional oversight, not lying to Congress, and not letting partisan politics (the qualifier an important point, when "politics" is used to defend things) overwhelm executive duty.
My concern here, however, is a certain red flag. The use of his "absolute right to fire" the prosecutors. Not true. This is not simply semantics. It also underlines the underlining constitutional faith (I plan to write a bit about a Gary Hart essay touching upon this) of the liberals etc. against the current regime. The President is a big believer of his constitutional privileges, but is fast in loose with the actual Constitution. The document speaks of executive power. The President has 'powers' not 'rights.' There is no "divine right of kings" here.
"Rights" are matters for individuals, only recognized (not given) by the Constitution, assumed to be self-existing.* Powers are carefully enumerated and limited. They are discretionary and ultimately privileges that can be taken away as well as necessarily carefully handled. Any not supplied are left to the states and people themselves -- see Tenth Amendment. The sense of birthright here suggests the problem with Bud's word choice, one that sadly is accepted by others as some sort of acceptable given that can be used to bolster the problem of lying etc.
Likewise, there is no clear power given to fire either! It is by implication, which in various cases (e.g., the independent counsel law, independent agencies, civil service jobs etc.) only supplies to 'for cause' firings. The assumption that the fact we are dealing with "executive" officials or in some fashion executive functions such as taking care that the laws are faithfully executed does not change the fact. Anyway, the very word executive implies that the power applies to those carrying out (executing) the interests of others. Namely, Congress.
"The consent of the body would be necessary to displace as well as to appoint," so said Federalist No. 77, written by Hamilton. He spoke of the Senate. That paper underlines the importance of the appointment power, underlining the dangers of the Patriot Act provision. Suggesting the complexities of originalism, Alex had a different view while in the Washington Administration, splitting from co-Federalist author James Madison in part. Now, he felt the President could fire confirmed officials without Senate approval. Though anonymous, people did know who wrote No. 77. Thus, Hamilton had to let it be known that he changed his mind!
The power of presidents to remove executive officials without cause ("for any reason") clearly has long been a matter of debate. James Madison, who supported some power of the executive to remove officers on their own, focused on the nature of the office. Discussing the Comptroller of the Treasury (as compared to let's say the Secretary of State):
It will be necessary to consider the nature of this office, to enable us to come to a right decision on the subject; in analyzing its properties, we shall easily discover they are of a judiciary quality as well as the executive; perhaps the latter obtains in the greatest degree. The principal duty seems to be deciding upon the lawfulness and justice of the claims and accounts subsisting between the United States and particular citizens: this partakes strongly of the judicial character, and there may be strong reasons why an officer of this kind should not hold his office at the pleasure of the executive branch of the government.
A local prosecutor, as shown by the fact that federal judges had the power to fill vacancies in certain situations, also has a related function. It simply is not a partisan executive office, but one that requires some independence, one that the executive does not have a clear de facto power to dispose for without cause. Surely not when the 'cause' turns out to be against the interests of justice. The person, shades of Marbury v. Madison, might not have a shot at going to the courts to sue if such "vested right" to the office is denied to them without cause, but Congress very well might step in.
Madison suggested even by impeachment, if the firing was really blatant, but surely by means of oversight ... it was noted that public opinion and pressure (ditto the many ways Congress can in practice challenge executive power) often is the core check on tyranny. Or, by means of a statutory limit on firing. The executive power to fire was a factor in the impeachment of Andrew Johnson though he fired a Cabinet secretary appointed by Abraham Lincoln. The matter of firing a postal worker provided a strong expression of executive power in Myers v. U.S., tempered later in cases involving independent agencies and the like.
The ruling was 6-3, however, with Brandeis providing a strong dissent (Holmes joined in, added brief remarks, and conservative Justice McReynolds added his own). The dissents answered most of the main arguments made until today in support of overweening executive power, including by noting that -- unlike Congress -- there was no "necessary and proper" clause giving open-ended powers to the executive. The case involved the post office, growing out of an enumerated congressional power, but the dissents - like the majority -- were based on more general principles. Offices Congress can create, surely 'inferior' ones, they can remove. They can also require only "for cause" firings. Brandeis and McReynolds -- in their own fashion -- were strongly concerned with separation of powers. And, citing Daniel Webster, Brandeis suggested application to this matter:
If a law were to pass declaring that district attorneys or collectors of customs should hold their offices four years unless removed on conviction for misbehavior, no one could doubt its constitutional validity, because the legislature is naturally competent to prescribe the tenure of office. And is a reasonable check on the power of removal anything more than a qualification of the tenure of office?
Holmes said things in his usual more pithy fashion. The core issue:
The duty of the President to see that the laws be executed is a duty that does not go beyond the laws or require him to achieve more than Congress sees fit to leave within his power.
The independent counsel law, upheld by the Supreme Court over a strong dissent by Justice Scalia, underlines the point. It might be open to debate how "inferior" local prosecutors might be as a constitutional matter, but they are not the same as attorney generals, clearly a top executive official with key policy matter powers. Local prosecutors, one per federal district (one covers two small ones), clearly have some discretion, but they simply are not top executive officials that the President clearly has "power" to fire at will for "any" reason, especially if Congress deems otherwise.
There is definitely no "absolute right to fire," especially as a matter of due discretion based on the principles of our system of government. A system that falls apart when we let our public officials do anything they might technically do, not taking into consideration what a good public policy would require. It truly is a problem when we accept as a given that they have some "right" to do this. They might assume as such, act as such, say as such, but we need not give them our support in such aggrandisement. And, in fact, normal practice in recent years -- until now -- was not to fire local prosecutors except for cause. Constitutional norms are secured in many ways, including by such accepted practice / quasi-official norms.
This point must be reaffirmed when this matter is debated and discussed. If we only focus on limited matters, such as lying to Congress, we open ourselves to trouble.
---
* The Constitution specifically recognizes various rights, leaving the rest secured by catchall phrases such as the Ninth Amendment. The existence of rights does not clearly determine how they are best secured. Over time, rights often are first honored legislatively, and not necessarily across the board and nation, the courts lagging behind. Some, like free speech, are more obvious ... the courts have a duty to honor less obvious rights as well, but from the beginning, judges have been more wary to do so given there is more doubts on their true contours. Thus, the Ninth Amendment etc. does not necessarily solve everything.