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 Sirota tweeted, 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.
But - and I want to be clear here - Bharara's refusal to resign wasn't about principle. It was about putting himself publicly on the side of anti-Trump Democrats, no doubt in the expectation of future rewards, political or professional. It was not a brave act. It was, in fact, a species of corruption.
A prosecutor so willing to disrespect the constitutional chain of command for petty personal reasons is one who's not fit to wield the enormous power that federal prosecutors possess.
And, to be fair, that's been my opinion of Bharara for some time. Although he has his fans in the New York legal community, I remember when he subpoenaed Reason Magazine for the names of commenters who had made over-the-top (but not actionable) comments about a federal judge Bharara practiced before - and then banned Reason from publicizing the subpoena by subjecting them to a gag order.
As I wrote at the time: "I continue to think that this is a case of U.S. Attorney Preet Bharara doing one (or both) of two things: (1) Attempting a sort of brushback pitch regarding people talking smack about federal judges, to the effect of saying that we can't punish you under the First Amendment but we'll go after you anyway; and/or (2) doing a 'favor' for a judge before whom he has a lot of cases. Both seem like abuses of power to me."
They still do, and Bharara's self-centered and abusive behavior there was a stain on his career that I hope will be remembered down the line. So is his refusal to resign in order to bolster his political position, which is, as I said, a species of corruption in itself.
I think we can do better than that. And I guess Trump thinks so, too.