Preet Bharara proved Trump right
The former U.S. attorney's petty defiance shows why he needed to be shown the door.
In the excellent Paul Newman legal thriller, Absence of Malice, Wilford Brimley faced a misbehaving Justice Department prosecutor who refused to resign. He fired him. It was Brimley’s breakthrough role, as a no-nonsense older guy there to fix a mess. In a way it prefigured what’s going on with President Trump and former U.S attorney for the Southern District of New York, Preet Bharara. Bharara refused to resign, and Trump fired him.
There’s been a lot of faux outrage about this decision of Trump’s, but it’s all bogus. And Bharara’s refusal to resign was childish, an effort to score anti-Trump points with Democrats that, all by itself, demonstrated why Bharara was unfit for office and why Trump was right to let him go.
Here’s the thing to understand: United States attorneys serve at the pleasure of the president. The prosecution of crimes, including the decision of which crimes to prosecute and which crimes not to prosecute, is at the discretion of the executive branch, which ultimately means the discretion of the president. U.S. attorneys work for the president in that capacity. And if the president thinks someone else would be better, he’s free to fire them and replace them.
And there’s nothing whatsoever unusual or improper about doing so, something the press has no trouble remembering when the incoming administration is run by Democrats. When Barack Obama took office, he dismissed a bunch of U.S. attorneys. Attorney General Eric Holder explained that “Elections matter — it is our intention to have the U.S. attorneys that are selected by President Obama in place as quickly as they can.”
Likewise, when Hillary Clinton was running for the White House in 2007, she said that replacing U.S. attorneys is "a traditional prerogative of an incoming president.” And, of course, she was right, and there was no outrage from the press. (As journalist and former Democratic staffer David Sirotatweeted, presidents have been replacing U.S. attorneys for decades. Why is this now a scandal? Well, because it’s Trump, and for the press, everything Trump does is a scandal.)
It’s traditional for new administrations to request the resignation of holdovers from the previous administration. It’s considered more polite than outright firing people. But that’s all it is: politeness.
Bharara’s refusal to resign wasn’t about the assertion of any sort of constitutional principle, or rule-of-law value. In fact, a respect for the rule of law would have required him to treat the chief executive’s legitimate powers with respect.