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U.S. Attorney Firings: Just Another Consequence of At-Will Employment ?

When it comes to fending off lawsuits alleging wrongful termination, the "at will employment" defense is virtually impenetrable. But is it enough to spare employers, including law firms or the president of the  United States, from criticism in the blogosphere? 

As this round-up of posts suggests, that Mayer Brown had the legal ability to eject partners at will didn't shield the firm from criticism about its mercenary decision to cast aside loyal partners in the name of increasing profits. When it comes to the president, however, the at-will defense buys slightly more deference. For example, commentors in this discussion at the WSJ Blog are split on whether the Bush administration's ouster differs from Clinton's decision to fire all 93 U.S. Attorneys at the beginning of his presidential term. In other words, the post addresses whether firing U.S. Attorneys is simply a legitimate exercise of presidential power or was, in this case, more insidious.  Likewise, some of the Volokh conspirators haven't blogged about the U.S. Attorney firings because, as discussed here by Orin Kerr, "I'm having a hard time figuring out just how big a deal it is." Kerr continues:  

On a more serious note, I haven't written about the U.S. Attorney's story because I'm having a hard time figuring out just how big a deal it is. Parts of it are obviously very troubling: I was very disturbed to learn of the Domenici calls, for example....At the same time, several parts of the story seem overblown. U.S. Attorneys are political appointees who serve at the pleasure of the President, and the press seems to overlook that in a lot of its reporting. Also, I know one or two of the Administration figures named in some of the stories, and based on my knowledge of them and their character (although no secret details of the story — I have not spoken with anyone about it) I have a feeling that they're getting a bad rap.

Others, however, aren't impressed by the at-will defense. The round-up of news stories from How Appealing primarily criticizes the terminations as politically motivated. And at the Washington Post legal blog, Andrew Cohen devotes a three-part series to Gonzales, concluding in this third piece that the terminations are simply the final chapter in the story of a man who "was proven to be unqualified for the job of Attorney General got it anyway and made a complete mess of things." 

As for me, I can accept that U.S. Attorneys, like most other lawyers, serve at will. But though the terminations may have been perfectly legal, what's galling to me is that Gonzales wasn't forthright about the reasons. If the administration, through Gonzales, chose to exercise its perogative to fire U.S. Attorneys who weren't carrying out the administration's political goals, they should have said so. Instead, they took the cowardly route, claiming that the prosecutors were fired for subpar performance, when that wasn't the reason at all. That's simply not fair.

At this point, it's not clear whether Gonzales will resign. If he does, Mark Grabin at Balkinization offers a list top 10 replacements.

Posted by Carolyn Elefant on March 15, 2007 at 07:54 PM | Permalink | Comments (6)


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