New York State Imitates the U.S.-Attorney-Firing Standoff But With a Key Difference: An Elected Attorney General

By MICHAEL C. DORF
Monday, Jul. 30, 2007

High-ranking Executive Branch aides attempted to use law enforcement resources for partisan political ends. The legislature learned of the illicit effort, but was stymied in its investigation by invocations of executive privilege. That sounds like the controversy surrounding the firing of U.S. Attorneys, allegedly for their failure to pursue partisan prosecutions, right?

Yes, but it also perfectly describes a scandal in New York State that threatens to derail the ambitious policy agenda of Governor Eliot Spitzer. Aides to Spitzer, a Democrat, instructed state police to investigate New York Senate majority leader Joseph Bruno, a Republican, in an effort to tarnish Bruno's reputation. Spitzer, meanwhile, claims that the aides acted on their own. Bruno wants to subpoena state executive officials, including Governor Spitzer himself, to appear before the State Senate. Spitzer's press secretary, however, initially responded that the State Senate "lacks the constitutional authority to conduct investigatory hearings into the internal operations of the governor's office."

Thus far, the federal imbroglio has led to an impasse. Is there a greater likelihood that the eerily parallel New York State controversy will reach resolution soon? Quite possibly. By the end of last week, Governor Spitzer had indicated that he and his aides likely would testify if subpoenaed.

Why did Spitzer appear to cave so quickly while President Bush has held firm for so long? No doubt part of the answer is that the two men hold different views about the nature of their respective offices. But there is also a structural difference between the executive branch of the United States and the executive branch of New York State: Unlike at the federal level, in New York, the Attorney General does not serve at the pleasure of the chief executive. He is elected independently, an arrangement that, as I shall explain below, has much to be said in its favor.

The Federal Impasse

The federal controversy appears to be marching inexorably towards a showdown. Last week, the House Judiciary Committee voted to hold former White House Counsel Harriet Miers and former Chief of Staff Joshua Bolten in contempt for refusing to comply with subpoenas. Meanwhile, some Senate Democrats have called for the appointment of a special prosecutor to investigate whether Attorney General Gonzales committed perjury in his testimony before Congress, echoing speculation earlier in the week by Republican Senator Arlen Specter about the possibility of a special prosecutor.

Will these maneuvers work? Probably not. For one thing, as the Libby case indicates, President Bush could undo any prosecution of Miers, Bolten or Gonzales by issuing a pardon.

To be sure, as Rutgers Law Professor Frank Askin cagily suggested in a recent Washington Post essay, Congress could circumvent the President's pardon power by itself holding the former and current officials in civil contempt. However, this tactic would be highly controversial and would require the Sergeant at Arms to arrest Miers, Bolten, and/or Gonzales, possibly without the assistance of the Capitol Police. The arrested officials would then undoubtedly file habeas corpus petitions, which would invite judicial resolution of the executive privilege issue, but probably not until after the end of the Bush term--with the officials languishing in jail in the meantime.

A special prosecutor would undoubtedly speed things up. Indeed, the appointment of a special prosecutor might even increase the likelihood that the courts--if and when they face the question--would reject the Bush White House's claim of executive privilege. After all, the Nixon Tapes Case also rejected a claim of executive privilege against a special prosecutor's demand for information relating to alleged wrongdoing by executive branch officials.

The Lesson of the Whitewater/Lewinsky Investigation

However, Congress itself has no power to insist on the appointment of a special prosecutor. From 1978 through 1999, the Independent Counsel Act required the Attorney General to seek the appointment of a special prosecutor following a referral, unless he found "no reasonable grounds" for further investigation. However, the Act sunsetted in 1999 and Congress, chastened by Independent Counsel Kenneth Starr's dogged pursuit of President Clinton, did not renew it.

Starr's excessive zeal is sometimes said to vindicate the judgment of Justice Scalia a decade earlier. The lone dissenter from the 1988 case upholding the Independent Counsel, Morrison v. Olson, Scalia worried that a prosecutor selected to investigate a single individual could prove vindictive or partisan. A politically accountable prosecutor, Scalia argued, is necessary to protect the People against such abuses.

And thus we have a dilemma. On one hand, if left to their own devices, Justice Department personnel have an incentive to turn a blind eye towards unlawful or other improper conduct by the high-ranking executive officials--including, ultimately, the President--for whom they work. That conflict of interest generated the call for the Independent Counsel Act in the first place.

Yet on the other hand, an independent counsel is not only independent of the administration; he is also independent of any political check on his prosecutorial zeal. We appear to have no choice between too little and too great an incentive for investigation.

The New York Counterexample

There is, however, an alternative, at least at the state level. The U.S. Attorney General is nominated by the President, confirmed by the Senate, and then serves at the pleasure of the President. By contrast, in New York and many other states, the Attorney General is directly elected by the people and cannot be fired by the Governor. Here we have the best of both worlds: a prosecutor who need not depend for his job on the people he may have cause to investigate, but who is subject to a political check.

Thus, in the current New York controversy, Attorney General Cuomo's office conducted its own investigation and produced a detailed report that was highly critical of the way in which Governor Spitzer's office directed a state police investigation of Senator Bruno.

What's more, Cuomo produced the report less than three weeks after receiving a request from Senator Bruno that Cuomo investigate the Governor's own investigation of Bruno. By way of comparison, Independent Counsel David Barrett, who looked into alleged wrongdoing by former Secretary of Housing and Urban Development Henry Cisneros, produced his final report more than nine years after he was appointed. By then, Cisneros had long left the job, having been replaced by none other than Andrew Cuomo in President Clinton's second term.

Independence With Accountability

There are, to be sure, disadvantages to having an elected, rather than an appointed, Attorney General. Sometimes the Governor and the Attorney General will not see eye to eye on matters of policy, especially when they belong to different political parties. That was occasionally the case in New York prior to this year, when Governor Spitzer was the Attorney General, and had to share the stage with Republican Governor George Pataki.

But just as members of different political parties in the legislature frequently work together to pass legislation, so a Governor and Attorney General with different agendas usually find a modus vivendi. At the very least, they have relatively clearly delineated responsibilities.

More importantly for present purposes, separate election ensures that even when the Attorney General and the Governor belong to the same political party, the former will not simply do the bidding of the latter. Indeed, Cuomo unsuccessfully ran for the Democratic gubernatorial nomination in 2002, and almost certainly hopes one day to follow in the footsteps of Spitzer by moving from the Attorney General's office to the Governor's office. Thus, Spitzer's political downfall may not even be an unhappy event for Cuomo (which is not in any way to suggest that Cuomo's report is anything but factual).

More broadly, personal ambition will often combat any inclination an Attorney General might otherwise have to protect a Governor of his own political party. At the same time, political accountability will prevent the Attorney General from undertaking a wildly excessive investigation or prosecution.

The Fractured Executive

Unfortunately, the model of an independently-elected Attorney General that New York and other states have adopted cannot be implemented at the federal level. The Constitution clearly specifies Presidential nomination and Senate confirmation of all "principal Officers," a term that undoubtedly includes the Attorney General.

And thus we are left with a supreme irony: The best solution to the dilemma highlighted by Justice Scalia's dissent in the Independent Counsel case is ruled out by the very principle that Justice Scalia extols in that dissent and elsewhere, a principle that is also frequently cited by the Bush Administration: that of the unitary Executive. According to the unitary Executive principle, all personnel exercising significant executive authority must be answerable to the President.

Justice Scalia and the Bush Administration have not (yet) succeeded in establishing the unitary Executive principle as the law of the land in all domains. For example, the Independent Counsel case, which remains good law, rejects the strong unitary principle.

However, there is no doubt that, in some domains, a weaker version of the unitary Executive principle holds sway. Congress could not, for example, enact a law mandating national elections for the office of Attorney General.

More's the pity. The juxtaposition of the federal and New York controversies shows that in at least one important respect we would be better off with a "fractured" Executive, not a still more strongly unitary one.


Michael C. Dorf is the Isidor & Seville Sulzbacher Professor of Law at Columbia University. He is the author of No Litmus Test: Law and Politics in the Twenty-First Century and he blogs at www.michaeldorf.org.

Ads by FindLaw