Presidential appointments have two important hallmarks: power and authority. It’s what attracts people to the jobs, often for the right reasons. Power and authority give people the chance to bring about welcome change, to fix broken processes and create better lives.
But there’s a downside to knowing the president can take your job away whenever he wants to. And President Donald Trump’s willingness to pull the “You’re fired!” trigger over and over again, a gimmick that once boosted his TV ratings, doesn’t exactly boost morale among the rank and file. America’s government was never meant to be a reality show.
Indeed, the prospect of being summarily fired can make even smart, accomplished people hesitant to act on their best instincts. Unfortunately, this is the uncomfortable position that Attorney General Jeff Sessions and Deputy Attorney General Rod Rosenstein find themselves in now, caught between their boss’s very public desire to end special counsel Robert Mueller’s investigation, and doing what they know they have to do to maintain the credibility of the Department of Justice.
Americans have long taken it on faith that because of the government’s carefully balanced structure, the president will exercise his power to take away a prosecutor’s job only rarely.
The awkward thing about the Department of Justice is that it is part of the executive branch, and the top officials at the DOJ are presidential appointees. That awkwardness ramps up when an investigation gets uncomfortably close to the president or his staff, as the president’s own appointees are now investigating him. And if his own appointees keep investigating him, it must be tempting for the president to wonder whether he should replace those appointees with others who will demonstrate more loyalty.
Americans have long taken it on faith that because of the government’s carefully balanced structure — a three-legged stool of the executive, legislative and judicial branches, kept honest by a free press — the president will exercise his power to take away a prosecutor’s job only rarely, and only after careful consideration.
That’s the rub — it might be overstating things to call it a flaw — in our system. The Constitution didn’t seem to contemplate so many investigations of the nation’s presidents by those presidents’ own hand-picked officials. To navigate this situation, the president has to exercise restraint and sound judgment — both of which are in short supply today. Serving “at the pleasure of the president” means, to borrow from the oft-used description of “at-will employment,” means that one can be fired for a good reason, a bad reason, or no reason at all. But one cannot be fired for unlawful reasons. A firing can look suspiciously illegal in certain circumstances; firing the investigator who is investigating you is one of those circumstances.
Two different U.S. presidents have previously messed with the jobs of top prosecutors at the Department of Justice. President Richard Nixon did it in 1973 when he ordered Attorney General Elliot Richardson to fire Archibald Cox, the special prosecutor who was getting uncomfortably close to incriminating Nixon in the Watergate scandal. Richardson resigned rather than fire Cox, and Deputy Attorney General William Ruckelshaus did the same. And so, when Solicitor General Robert Bork finally carried out Nixon’s order to fire Cox, three very important people were suddenly out of their jobs.
More than 30 years later, in 2006 as President George W. Bush’s second term was entering the home stretch, a gaggle of ambitious young Republicans moved into the Department of Justice and pushed the prior political appointees out of the nest. They then set their sights on U.S. attorney positions, hoping to later make a case that they should obtain life-tenured federal judgeships, while also removing certain U.S. attorneys who had indicted or investigated Republican politicians.
Toward that end, they called seven U.S. attorneys on a single day and demanded their resignations, citing no reason at the time other than that a presidential appointee can be fired at the pleasure of the president. (I was one of the seven U.S. attorneys who received that unwelcome call. The ensuing media and congressional outrage ultimately led to the resignations of multiple officials who designed and carried out the firings, including Attorney General Alberto Gonzales.)
So what happens when a president wields his power to take away jobs with emotional, reckless abandon? What happens is that many people don’t do their jobs quite the same way they would have done them if they weren’t afraid.
One might ask why federal judges (all of them, not just Supreme Court justices) are the only members of our government who are granted life tenure by the Constitution. Article III of the Constitution assures federal judges that they will retain their jobs so long as they exercise "good behavior” (with impeachment being the only means of termination) and that their compensation can never be reduced. Of course, we want our federal judges to be free from external pressures, so that their decisions can be as close to independent as possible. It’s a tacit acknowledgement that the desire for job security influences our decisions.
But wouldn’t we like all of our leaders to conduct themselves free from external pressures? Why do federal judges receive tenure for life while everyone else must submit to re-election or term limits — the exact opposite of life tenure?
It’s because at the end of the day, judges don’t wield much direct power outside of their own courtrooms, and short of taking outright bribes, it’s pretty tough for judges to enrich themselves through their work. Judges can’t make business deals, create new monetary policies, or redirect an agency’s resources. A typical federal judge has a courtroom clerk, a bailiff and two or three young law clerks. Most judges don’t even have a say in which cases are assigned to them. So giving lifetime tenure to a judge is a relatively safe proposition, with possible impeachment hanging over the heads of those who actually do engage in misconduct.
Without life tenure, the fates of a president’s other appointees are left to random acts of whimsy, or worse. I was asked to resign from my presidentially appointed position as United States Attorney in the Southern District of California nine months after my office prosecuted Republican congressman Randy “Duke” Cunningham. As I am non-partisan by nature, I never once thought about the political party of the Congressman whose house we had searched. But now, having once been fired as a consequence of my lack of political deference, I probably wouldn’t be able to keep political considerations from at least entering my mind. I don’t think that’s what most Americans really want.
How do people deal with jobs where doing the right thing can get them fired? True public servants, like Richardson, Ruckelshaus and Cox, understand the ultimate price of integrity. “When you accept a presidential appointment you must remind yourself there are lines over which you will not step — lines impossible to define in advance but nevertheless always present,” said Ruckelshaus in 2009. “The line for me was considerably behind where I would have been standing had I fired Cox. In this case, the line was bright and the decision was simple.”
How do people deal with jobs where doing the right thing can get them fired? True public servants, like Richardson, Ruckelshaus and Cox, understand the ultimate price of integrity.
George Shultz, while secretary of state for President Ronald Reagan, famously said he would resign rather than accede to a mandatory polygraph test required of all those with access to highly classified information. After Reagan signed the executive order requiring the tests, Shultz responded that the would-be polygraphers could, in effect, take a hike and the secretary would submit his resignation forthwith. (He believed polygraphs to be scientifically unsound and, more importantly, that the rule reflected an insulting lack of trust in the country’s public servants, stating: “The minute in this government I am told that I'm not trusted is the day that I leave.”)
Reagan subsequently modified the polygraph program, giving Shultz discretion regarding who in his department had to take the test. Shultz himself never did.
So some people can, and do, take a principled stand when faced with losing their jobs. But it requires a mindset that not everyone has. And at the end of the day, firing someone is not nearly as bad as other abuses that have been visited on appointees who are viewed as disloyal. Despots in many countries don’t stop at taking away jobs; they also blacklist, imprison, hurt family members, mutilate and kill. Each carries its own level of fear.
While losing a job is tough, it’s not the end of the world — but it could be the first step.