Gonzales Series: Vox Pop Postscript

Our just-completed four-part series "Rough Justice"-- on Alberto Gonzales and the office of Attorney General of the United States-- sure did come at the right time, didn't it? My bosses and I here at washpost.com started talking it about it only a few weeks ago, just at the very start of the latest controversy over the White House/Justice Department firing of eight federal prosecutors. I was hoping to be ahead of the curve by a week or so. Turns out we were struggling to catch up with that curve. Even as I was writing it, last weekend and into last week, the story burgeoned into what it is today-- a very big deal that is likely to get bigger if and when people like Karl Rove and Harriet Miers are subpoenaed.

The series generated a lot of comments, not just below, but on other sites as well. Some readers were downright hostile. But the vast majority were not. Because so many of you took the time to write, and because so many of you had smart insight to offer, I thought I would do this postscript for the series and include below just a few of the many, many intelligence responses to my work. As always, I thank you for the many kind words you shared about the project and, even when you didn't, thanks for taking the time to get involved in the discussion. I also want to invite you to send me comments proposing the NEXT Bench Conference series-- sort of like American Idol for nerds!

In Part I of the series, I focused upon the role of the office of Attorney General of the United States and touched upon how Gonzales seemed to fit into the "pliant" category of office-holders. That prompted Michael Cooney to write: "Seems to me, an attorney general of a different party from the president would be a good idea. Keep 'em honest." A great idea. And a reader who chose to use the name "Peter Principle" wrote of Gonzales: "He's still go a ways to go to top John Mitchell, Ed Meese and Janet Reno. Also Harry Daugherty, Harding's AG during the Teapot Dome scandal. And Mitchell Palmer, of the infamous Palmer raids. And John Ashcroft, who helped give us the Patriot Act. Come to think of it, Gonzales, as bad as he is, isn't even close to being the worse AG ever. The competition is just too stiff."

Thank you, "Peter," whoever you are. During my research I was indeed astonished to learn and be reminded of how many truly awful attorneys general we have had in our nation's history. In fact, if I had the time and energy to write a book (Attention editors, agents and publishers out there), I would write about the sordid history of a high office. "Peter" is right about Harry Daugherty and the other infamous AGs. That's why at some point in the piece I couched and said that Gonzales was closer to the bottom than to the top.

SamG made a great point with his post. "One serious omission in this article is any reference to Robert Kennedy, who served as his own brother's attorney general. i cannot think of a greater conflict of interest than that. How could a brother possibly serve as his brother's critic, and possibly punisher? That appointment blows away any possibility of objectivity if the president or other high officials commit crimes. And, of course, that reemphasizes the need for independent counsels or special prosecutors who are not bound by that closest of ties -- blood -- to a president." He is right. I should have included RFK in my list of inappropriate choices for AG. As unlucky as he was in life and death, Robert F. Kennedy was lucky as Attorney General, however, especially and famously in the area of the enforcement of civil rights laws.

Finally, for Part I, Barton Frank pretty much summed up what most commenters said they felt. "When rendering an opinion, the Attorney General of the United States is sworn to uphold the constitutionality of our laws," Frank wrote. "The Bush administration, aided by the ill advised opinions of Attorney General, Gonzales, acted in violation of the constitution, at a loss to the reputation of our nation and the freedom of its people."

In Part II of the series, I focused on Alberto Gonzales' relevant legal career before he took over as attorney general. Nick Boski offered some interesting context. "Shortly after it was revealed that the government had been engaging in warrantless doemstic wiretapping," Boski wrote, "Gonzales came to Georgetown Law to offer an argument in support of the program. That turned out to be nothing more than a reiteration of the shakey legal arguments that (i) the president was authorized to do so when Congress gave him authority to engage the war on terrorism, and (ii) the president's Article II constitutional power as commander-in-chief allowed him to do so. Rather than stick around and take questions, Gonzales walked out of the room right after his speech. The simple fact that Gonzales refused to stick around and debate a bunch of law school students about a controversial issue that is undoubtedly a matter of great public concern demonstrates his lack of intellectual capacity or ethical integrity to be the country's top law enforcement official."

One reader, J Harris, made a point that many legal and political experts around the country, Dems and Republicans alike, have been telling me, too. "Gonzales has undermined the integrity of the entire federal criminal justice system by any number of his actions and omissions. Nothing the Justice Department does can go without being examined to see if the action is motivated by political considerations. It will take a long time to overcome what has been done to Justice by this administration." And several of you took the time to lyrically write to tell me that Gonzales' tenure as Attorney General made you long for the days of John Ashcroft.

Part III of the series focused upon Gonzales' shoddy record in office. Reader "Jon" wrote to echo a sentiment many of you shared. He wrote: "I once zinged a colleague at a federal agency by saying 'how does it feel to be outsmarted by Dan Quayle?' when his staff forced changes to a major policy. I suppose the best way to characterize the AG's record is 'how does it feel to be less qualified as a lawyer than Harriett Miers and John Ashcroft?'"

Sean made a couple of very good and very fair points with this post: "I certainly agree with you that Gonzales is an incompetent attorney general, but you had me only up until you said that Gonzalez was obliged to protect the jobs of the people in his charge and stand up to his boss. U.S. Attorneys, like the AG himself, serve at the pleasure of the president as POLITICAL appointees, which generally means that they are obliged to pursue the president's priorities. For the AG there is indeed a fine line to walk with supporting the president's agenda (war on drugs, organized crime, illegal immigration, civil rights, etc.) and protecting the people's rights under our Constitution.

"However, as political appointees," Sean continued, "f the president wants to fire one, some, or all of the U.S. attorneys (or his cabinet, or military commanders, etc.) at ANY time that is his right as the chief executive. We have seen that there is a political price (another scandal) for such dismissals so the president must act judiciously, but the president and the DOJ did not act improperly by firing political these appointees." I disagree with Sean but he states the White House position very clearly and well. In my opinion, the reasons for the firing of these federal prosecutors, and the timing of them, and the explanation later given for them, makes this an extraordinary case that goes beyond all the "I serve at the pleasure of the President" stuff.

And although "Donna" got my name wrong she added this factoid that I, indeed, had forgotten to include. She wrote: "Mr. Cohan forgot to mention that this Attorney General acctually made the statement that he " wasn't sure that the constitution specifically guaranteed the right to Habeus Corpus". She is referring to this famous exchange, as chronicled by The New York Times on January 24, 2007: "One of the Bush administration's most far-reaching assertions of government power was revealed quietly last week when Attorney General Alberto Gonzales testified that habeas corpus -- the right to go to federal court and challenge one's imprisonment -- is not protected by the Constitution."

The Times piece continued: "'The Constitution doesn't say every individual in the United States or every citizen is hereby granted or assured the right of habeas,'' Gonzales told Sen. Arlen Specter, R-Pa., during a Senate Judiciary Committee hearing Jan. 17. Gonzales acknowledged that the Constitution declares 'habeas corpus shall not be suspended unless ... in cases of rebellion or invasion the public safety may require it.' But he insisted that 'there is no express grant of habeas in the Constitution.' Specter was incredulous, asking how the Constitution could bar the suspension of a right that didn't exist -- a right, he noted, that was first recognized in medieval England as a shield against the king's power to dispatch troublesome subjects to royal dungeons."

In Part IV of the series, I pitched Patrick J. Fitzgerald as the next Attorney General. Several of you immediately pointed out that Fitzgerald was not, as I had initially written, a Republican but rather an "independent." I took note of that last week and would only otherwise reiterate that Fitzgerald is a Bush-appointee who has risen through the ranks during a Republication administration. Still, thanks for the heads up. A reader named "Houston" (I hope Roger Clemens leaves you and comes to Boston) wrote to propose another Fitz-like candidate: "How about other lawyers in the government who have taken some very principled stands - like Lieutenant Commander Charles D. Swift (of Gitmo fame)?" Great idea. Swift, indeed, is a hero. But I reckon he is at least one adminstration away from getting the recognization he deserves.

A reader named "Kathy" offered a fascinating perspective which is definitely worth sharing: "My great uncle James Speed, was attorney general under Lincoln and this dismal situation with the Justice Department requires prompt action to restore the confidence of the citizens that the impartial rule of law still is supremely important. When thinking of who best to restore the credibility with the limited time left to the Bush Administration before a new President is sworn in...it needs to be someone who had no other career designs beyond restoring the Justice Department credibility. I would hope that it would be Sandra Day O'Connor who could fill this role and then retire once again." I would be first in line to support O'Connor, Kathy, but I think loves the freedom that her "retirement" has brought her and also enjoying time with her beloved husband.

A reader named "Cincigal74" (just before the Reds starting winning World Series) had a different perspective on my choice: "Obviously Fitzgerald made some sort of a deal with Bush/Rove/Cheney.Rove lied to the grand jury same as Scooter. However he was allowed to change his story. Fitzgerald is a snake in the grass and has pulled the wool over the American public's eyes. The bought man is just as bad as the buyer." Whoa. Reader "TomT" also was cynical but for different reasons. He wrote: "I find it a bit sad that so many on the right are opposed to the idea of a truly independent DOJ just as they are opposed in general to an independent judiciary. It goes to show, I'm afraid, that many of the Republicans today are no conservatives but rather authoritarians, consumed more with controlling all of the levers of power than with any particular notion of what these levers should be used for (save accumulating more power)."

I will leave it up to you to read the rest of the comments. Some are great. Some not so much. As some of you noticed and mentioned, too, I was surprised at how little substantive defense was raised on behalf of the Attorney General. No one pointed to the Justice Department's success in prosecuting sex-assault cases or its work on immigration matters. Thanks again for reading and don't forget to send me comments proposing the next Bench Conference series.

By Andrew Cohen |  March 19, 2007; 9:00 AM ET agag
Previous: Part IV: The Case for Attorney General Patrick Fitzgerald | Next: Documents Dumped, Questions Remain


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RE: Robert Kennedy. Often the only person who will not be pushed around is someone's relative. Brothers often will be much more blunt to each other than friends or co-workers would be.

Posted by: Chris M | March 19, 2007 02:05 PM

in re: next Bench Conference series

1) Rudy Giuliani's record as a US attorney.

2) The depth of the corruption of the USA's under BushCo.

3) The viability of a enacting a constitutional amendment (that's what it would take) to elect the U.S. Attorney General independently of the President and V.P. Include the most relevant history of U.S. states' handling of this issue (advantages/disadvantages, bizarre anecdotes, etc.). After the reign of BushCo, I'm about ready to have the V.P. and the whole damn cabinet elected independently of the President.

Posted by: dzman49 | March 19, 2007 05:26 PM

I'd like to offer a slightly different perspective on the "serves at the pleasure of the president" line. This is exactly analogous to the position I have at work. My employer can terminate my employment at any time, and for a great variety of reasons, or no reason. But there are some reasons for termination that are illegal, such as race, age, etc. Now in the case of the Gonzalez Eight, it appears that the reasons were that the U.S. Attorneys in question either prosecuted criminal behavior by the President's allies or failed to persecute people who disagreed with the President. Either of those reasons is at best obstructive of justice, whether or not it matches a legal definition of obstruction. And that's why this is a scandal.

Posted by: Bill | March 19, 2007 10:28 PM

Re: ideas for Bench Conference series or, at least, examination:

1. I agree that Giuliani's term as USA is worth study. So is his mayoralty, during which he issued orders that violated people's First Amendment rights, threatened institutions that veered from his PERSONAL proclivities -- and undoubtedly left the city saddled with millions of dollars in settlements. .

2. Lawyers are subject to the Code of Professional Ethics and judges have an additional Code. Do US Attorneys also have an additional Code? One of the most troublesome aspects of "serves at the president's pleasure" is that USAs are ALSO required to abide by professional standards that could put them into conflict with an administration's political objectives.

3. What about the OTHER 85 USAs, who were not fired? Their reputations now, in the wake of being identified as "Bushies," would seem to be damaged, perhaps appropriately.

Posted by: Stew | March 25, 2007 11:20 PM

What's all the fuss about, anyway, when it's fundamentally an "employment at will" & "serves at the pleasure" situation?

None, except when its not. Obstruction of justice may be one problem, the Hatch Act may be another.

But in layspeak: it's intuitive that the top law enforcement officer in the U.S. must be able to excercise independent legal judgment & let those beneath him do the same. The law applies to BOTH parties, last I checked, & prosecutions based on whether a person is a Democrat or a Republican is just beyond the pale. And indefensible.

Otherwise, I say: pass the popcorn. It's very entertaining to watch the Bushco ship of state finally go down. Those cognizant of what's been happening to this country, especially where the "rule of law" is concerned, will be wondering, like me, only why its taken so long.

Thanks for the series, Mr. Cohen. More like it, please!

Posted by: Liberal Lawyer | March 27, 2007 05:23 PM

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