Attorneygate moral: Don't fire stupidly

OK. Time to weigh in on the Justice Department's disastrous firing of the US Attorneys, but from an employment-law perspective instead of a political one. For some background on the story, go to Peter Lattman's always-excellent Wall Street Journal Law Blog. His posts on the topics are archived here. The Washington Post has a nice summary here and a handy chart with art here.

Here's the short version: The Justice Department fired eight United States Attorneys in late 2006. (A US Attorney is the senior federal law-enforcement officer in his or her judicial district; there are 93 districts in the country.) The President appoints the US Attorneys, subject to the Senate's confirmation. Their terms are four years long, but they are subject to removal by the President (see 28 U.S.C. 541(c)). Just like that. In other words, they are employees at will, like 99 or so percent of the rest of us.

So the President fires these eight prosecutors. So what? They're political appointees, and he wants to replace them with new political appointees. The law allows it. Big deal.

Here's the problem, and the lesson for all employers. The White House could have said, "Yes, the President has decided to replace these eight US Attorneys. They're political appointees who serve at the pleasure of the President. It is the President's pleasure to replace them, and the law says he can do that." But the White House and the Justice Department instead started playing the explanations game. Rather than just owning the firings and then shutting up, they started giving reasons and stories that kept changing: Performance problems. Not political. It was Harriet Miers's idea. It was Karl Rove's. Attorney General Alberto Gonzales wasn't involved. OK, he was. (For a summary of the shifting stories, see Dan Eggen's "Accounts of Prosecutors' Dismissals Keep Shifting" in the March 17 Washington Post. Another cool graphic with problematic email quotes is here.)

Now everyone's up in arms over this. Congress wants explanations. Constitutional showdown and all that. Counterstories about how great the prosecutors were. Heck, one of them — David C. Iglesias — is widely reputed to be the model for the main character in A Few Good Men. Great. Now you've gone and fired Tom Cruise. And we're talking the old version: Oscar-nominated, box-office guarantee, Top Gun, Jerry Maguire Tom Cruise — not Scientology-promoting, psychiatry-slamming, couch-jumping Tom Cruise.

The problem wasn't necessarily the firing. Who are we to say that these eight (effectively) at-will employees should have kept their jobs. It's not our decision.

The problem was saying too much about it, and then having the stories change. Once that happened, Congress and the press smelled the blood in the water. Don't be surprised if we hear from some plaintiff-side employment lawyers, too. And Attorney General Gonzales will be sending out résumés by the time Opening Day rolls around.

The moral is: Fire who you want to fire, own the decision, and then shut up about it.

Otherwise Congress will be investigating you for firing Lt. Kaffee.

Comments

[Bryan Price]

I would agree that this administration would have been better off just stating that these attorneys were replaced at the pleasure of the President. Too many people outside of the administration have been shooting off their mouths about it, which would still have caused political fallout. Firing somebody who serves at the pleasure will mean no legal consequences, but nothing can prevent political consequences. I've personally seen it happen at the state level. Even firing for cause doesn't prevent that.

The way this administration handled the firings was either political incompetence, still thinking that Congress would be compliant, or both. The more I think about it, strike the part about Congress. They're just incompetent.

Oh, and Tom Cruise is Scientology-loving, not bashing. Which explains why he slams psychiatry. Science-bashing, now that's something that I can claim ignorance on.

[Jay Shepherd]

Thanks, Bryan, for your comment. It probably was fear of political fallout that motivated the halfhearted explanations. Sometimes you just have to rip the Band-Aid off quickly.

Thanks, too, for catching my gaffe with the Scientology reference. I was too quick to type "bashing." It's fixed now.

— Jay

[Evil Hr Lady]

Excellent point. One of the things I do is train managers how to lay people off. We instruct them to use the language, "your position has been eliminated." And stick with it!

[Jay Shepherd]

You're right, E.H.R.L. Better to be seen as "evil" than to be stupid about it. Thanks for the comment. — Jay