What are the two contradictory statements that the WH is selling at the same time? Well, on the one hand, WH spokespersons like Dana Perino and Tony Snow are saying:

President Bush made "no recommendations on specific individuals," Snow said. "We don't have anything to indicate the president made any calls on specific us attorneys."

On Monday, White House spokeswoman Dana Perino acknowledged that complaints about the job performance of prosecutors occasionally came to the White House and were passed on to the Justice Department, perhaps including some informally from Bush to Gonzales.

http://www.cnn.com/...
Emphasis added.

At the same time, Bush and others, including the Atty Gen, are invoking a West Wing wind with the claim that:

US Attorneys serve at the pleasure of the President.

Despite the oversimplification of this statement (it fails to recognize that the President may not require illegal acts in order to be pleased), note the language. No mention of, "at the pleasure of the Attorney General's Chief of Staff?" How about, "at the pleasure of some guy named Rove?" Or even, "at the pleasure of the Dept. of Justice heirarchy?"

The legal analysis of the removals (by firing, pushing out, forced resignations, etc.) starts with looking to see who has the right to remove United States Attorneys. Does the Attorney General or Department of Justice have that right?

No.

28 U.S.C.541 provides as follows:

Sec. 541. United States attorneys

(a) The President shall appoint, by and with the advice and consent
of the Senate, a United States attorney for each judicial district.
(b) Each United States attorney shall be appointed for a term of
four years. On the expiration of his term, a United States attorney

shall continue to perform the duties of his office until his successor
is appointed and qualifies.
(c) Each United States attorney is subject to removal by the
President.

Compare and contrast with:

Sec. 542. Assistant United States attorneys

(a) The Attorney General may appoint one or more assistant United
States attorneys in any district when the public interest so requires.
(b) Each assistant United States attorney is subject to removal by
the Attorney General.

Removal of a United States Attorney cannot be accomplished by a freestanding, independently acting, Attorney General (or Chief of Staff).

This is not to say that there might not be a mechanism for the President to delegate his authority, if done with specificity. But the WH statements to date have been to the contrary. They have claimed that the President was not involved in any of this - gossip might pass from the President to the AG, but the President never specifically delegated his specific rights under Section 541 to remove specific US Attorneys, to any specific person or group of persons at DOJ. His spokespersons have specifically told us that.

If true - then some "rogue cabal" at DOJ did what only the President can do. They usurped to themselves, in violation of statute, a power that resides solely in the President.

For example, let's say one day Kyle Sampson shows up in front of the cameras and says that he is pardoning Scooter Libby. Can he do that? Well, what if at the same time, the President is saying, "I haven't had specific conversations to pardon anyone specifically with any specific people at DOJ - heck if I know what's going on?" What then? Adding another wrinkle, what if, at the same time, the President also stands and makes the non-sequitor that: "the President has an absolute right to pardon folks."

Doesn't that pretty much cry out for an explanation of whether the President did or did not delegate his power to pardon? If he did not - then the fictional Libby was not "pardoned" by the fictional Sampson, bc Sampson had no such authority.

To the extent that the President did not specifically authorize, by delegation or by direct order, the removals, and sticks with that story, then we are left with removals done by people with no authority. Void acts.

OTOH, if he wants to open the door to his involvement, then he has to, at some point, provide information as to how, when, why and with what parameters, he delegated his removal powers.

Second Stage Considerations, FWIW.

Even if the President does step forward and admit to involvement, directly or by delegation, in the removals and provides details of the delegation and superivision of such delegated authority, the removals must still comply with other requirements, including, for example, that they not involve violations of criminal statutes.

If removal involves, for example, obstruction of justice, in any of the many guises revealed in 18 USC Chapter 73 (for example, Sec. 1503 - influencing an officer, Whoever corruptly, or by threats or force, or by any threatening letter or communication, endeavors to influence, intimidate, or impede any ... or officer in or of any court of the United States...), then it is illegal.

Where statutes limit the legality of certain actions, whether taken by the President or others(for example, not using removal from office as a threat to influence in a political fashion the independence of prosecutors) then a President's removal powers are not unlimited.

Humphrey's Executor v. United States, 295 U.S. 602 (1935), examined the claim that the President has an absolute right to remove any Executive officer, and found that this was not the case. Although Humphrey's Executor only involved removal that violated certain statutory standards set for the office, it is instructive in the more egregious case of removal that may or does involve violation of the criminal code.

We think it plain under the Constitution that illimitable power of removal is not possessed by the President in respect of officers of the character of those just named. The authority of Congress, in creating quasi legislative or quasi judicial agencies, to require them to act in discharge of their duties independently of executive control cannot well be doubted; and that authority includes, as an appropriate incident, power to fix the period during which they shall continue, and to forbid their removal except for cause in the meantime. For it is quite evident that one who holds his office only during the pleasure of another cannot be depended upon to maintain an attitude of independence against the latter's will.

http://caselaw.lp.findlaw.com/...

Of course Congress has authority to require that US Attorneys be free from threats and intimidation by the Executive in the performance of their prosecutorial decision making. The requirement of prosecutorial independence is not some new, later day, invention. It has been around a long time and challenged in many forms.

US Attorneys first serve the law. Only secondarily do they serve at the legal pleasure of the President.