Part III: Alberto Gonzales: The "Empty Suit" AG
Brought into the President's cabinet amid oft-stated concerns that he was a mere crony and "facilitator" for the President, and with a controversial record as White House counsel and counsel to then-Texas Governor Bush, Alberto R. Gonzales' record since he took office as Attorney General is a dismal one. In fact, whether it is the legal war on terrorism or garden-variety issues of crime and punishment, it is hard to identify a single area of unchallenged success. And even where the current team at the Justice Department has enjoyed good news-- say, for example, in the area of increased sexual assault prosecutions or solid white-collar convictions-- the wheels for such victories already were in motion before Gonzales took on the job.
As I focused upon yesterday in Part II of this series, Gonzales' failures aren't just on substantive matters. He has continued to fail, some legal scholars say, to break free from the widespread and long-held perception that he is so beholden to the President, on both a personal and professional level, that he is cannot exercise the independent judgment necessary to properly fulfill his duties at the Justice Department.
In many ways, Gonzales's tenure at the Justice Department has justified the fears of his worst critics and given little favorable ammunition to his best friends. "I thought at the time that it was almost certainly a bad choice," says Stanley Katz, a legal historian at Princeton University. To Katz, Gonzales, upon taking the job as Attorney General was "a person with no experience at the national level, who appeared to be a sycophant of the president, who appeared to be a person who would be unlikely to be able to provide really good advice on big questions, and who appeared to be a person unlikely to be independent to some degree as attorney general and I think all of those things have proven to be true."
Other observers are not even that kind. John Dean, former White House counsel during the Watergate era, told me bluntly via email earlier this week that Gonzales "is an empty suit Attorney General. He is way over his head and it shows... He has been overwhelmed since the day he arrived in Washington in 2001." Two other sources also used the phrase "in over his head" when describing Gonzales and his work at the Justice Department. And one can only imagine what career lawyers within the Justice Department now are saying under their breath about their boss after he failed to adequately insulate them from political pressure from the White House and Congress. Actually, one need not imagine. They are beginning to speak out forcefully.
The perception of Gonzales as a lightweight, as a man not smart or brave enough to do his job well, might well have stayed on the back-burner--surely he is not the first Attorney General to be accused of being overwhelmed by the job-- if he could point today to a record of substantive strength and wisdom shown by his Justice Department over the past two years. But he cannot. Over and over again, the Attorney General has sided with the White House and against a national legal consensus; over and over again he has failed to act as a checkpoint, or even a speed bump, to halt the expansion of presidential power. At a time when the Constitution is under enormous political and legal pressure thanks to the war on terrorism, we have on our hands an Attorney General who still shills for the President as if he were working out of the White House or the Governor's mansion in Austin.
For example, he vigorously defended the National Security Agency's domestic surveillance program even though most legal scholars believe it to violate both the Constitution and federal statutory law. In fact, a federal trial judge last August formally declared the program unconstitutional. That legal setback prompted the White House cut a deal with the presiding judge of the Foreign Surveillance Intelligence Court to allow a measure of supervision over the program, a move some analysts still see as legally dubious. But even then Gonazales at first refused to share with Congresss the terms of that deal. At no point, at least so far as we know, has the Attorney General questioned the constitutionality of the program or otherwise offered a legal viewpoint that contradicts that of the White House.
Strikingly, Gonzales' unwillingness to differ with the White House contrasts with the position his predecessor-- no shrinking violet when it came to conservative ideology-- took on the issue of NSA eavesdropping. As recounted memorably by Eric Lichtblau and James Risen of The New York Times, then-Attorney General John Ashcroft was in the hospital in March 2004 and his acting deputy, James B. Comey, was refusing to sign off on the National Security Agency's spy program. This came before, of course, the program became known to the world. The White House, apparently desirous of Ashcroft's approval, sent Gonzales, and then-chief of staff Andrew Card, to try to talk Ashcroft into giving the Justice Department's go-ahead.
The Times was unable to determine whether Gonzales' mission to the hospital was successful. But the paper did report that "some officials said that Mr. Ashcroft, like his deputy, appeared reluctant to give Mr. Card and Mr. Gonzales his authorization to continue with aspects of the program in light of concerns among some senior government officials about whether the proper oversight was in place at the security agency and whether the president had the legal and constitutional authority to conduct such an operation." In other words, even Ashcroft when he was Attorney General wasn't sure the program was constitutional. But Gonzales was, and apparently still is, even though he now has Ashcroft's old job.
And just today we learn, from the National Journal, that: "Shortly before Attorney General Alberto Gonzales advised President Bush last year on whether to shut down a Justice Department inquiry regarding the administration's warrantless domestic eavesdropping program, Gonzales learned that his own conduct would likely be a focus of the investigation, according to government records and interviews. Bush personally intervened to sideline the Justice Department probe in April 2006 by taking the unusual step of denying investigators the security clearances necessary for their work."
Meanwhile, the Justice Department's prosecution of alleged terrorists has been spotty, at best, and federal judges have grown increasingly unwilling to accept blind government assertions of national security interests. The most obvious example is the trial of Zacarias Moussaoui, whom federal prosecutors alleged was a key conspirator in the plot to attack America on September 11, 2001. Under Gonzales' direction, the feds not only were unable to gain a death sentence for Moussaoui (despite his best efforts to convince a jury otherwise) they also had to endure the indignity of seeing one of their own lawyers scandalize the trial by attempting to coach witnesses. The upcoming terror conspiracy trial of Jose Padilla, the fellow once sold to us as the "dirty bomb suspect" also bodes ill for the Justice Department given the trial judge's tangible disdain for the government's case.
Then there is the leadership of the Justice Department, or lack thereof, in brokering a compromise that might have quickly ended the legal standoff over the rights of the terror detainees currently held down at Guantanamo Bay, Cuba as well as individuals who are now or who in the future may be designated by the President as "enemy combatants. Last summer, the United States Supreme Court struck down the existing rules for military commissions that would have tried the men. What followed was the legislative disaster called the Military Commissions Act of 2006, which is currently being challenged in the federal court system as not going far enough in protecting individual rights. Where was the "people's lawyer" on this issue? Guess. He defended the Act and the onerous legal principles upon which it is based. A federal appeals court in the District of Columbia just a few weeks ago upheld the Act but ultimately the Supreme Court will have to get involved again-- a process that could take a year or so more.
Which brings us to this month's bad news at the Department of Justice. In assessing the Attorney General's role in the scandal over the U.S. attorneys, there are really only two main possibilities. Either Gonzales had no idea that the White House and certain politicians were pressuring his subordinates (his federal prosecutors) to the point of dismissing eight of them. Or he knew about the pressure and allowed it to occur. In the first instance, Gonzales was not providing vital leadership. He was not sticking up for his employees the way any manager ought to stick up for his employees in the face of pressure from on-high. In the second instance, he agreed with the White House that the eight attorneys deserved to be fired, which means he finds it acceptable for the Department of Justice to be politicized in a way that goes way beyond where it has been before. In neither instance is his performance acceptable. Nor, for that matter, are his post-hoc rationalizations for his role in the affair.
Here is how a strong piece in Thursday's New York Times, written by Eric Lipton and David Johnston, frames the issue: "'I will no longer represent only the White House,' [Gonzales] testified in 2005 as he prepared to leave his job as White House counsel. 'I will represent the United States of America and its people. I understand the differences between the two roles.' Yet in one of his first acts in his new job, Mr. Gonzales brought over two top White House aides and elevated a third, D. Kyle Sampson, a Justice Department staff member who had worked in the White House. Within days, Mr. Sampson began identifying federal prosecutors to oust, an effort initiated by Harriet E. Miers, the fellow Texan who succeeded Mr. Gonzales at the White House."
A serial crony seems intent and content to bring or allow cronyism into a place where among all other institutions in Washington it has no business being. "It's O.K. for the president to hear and repeat a politically motivated complaint," Harry E. Cummins III, the ousted United States attorney in Arkansas, told the Times this week. "It is O.K. for Karl Rove to act on it. But it is not O.K. for the gatekeeper of the Department of Justice to let it impact what happens inside the department," Mr. Cummins added. Another fired former prosecutor, John McKay, from Washington state, told CBS News: "Any individual prosecutor is replaceable. What's not replaceable is our reputation for fairness and our reputation for independence from political influences." These are precisely the sorts of comments that ought to be coming out of the mouth of the Attorney General, not the poor loyal prosecutors he failed or refused to protect.
Now, an Attorney General with this sort of a hapless record no doubt would like to be able to say to the American people: "in spite of all of this, I have helped make you safer where you live." But, here, too, Gonzales has failed. According to the National Association of Police Chiefs and Sheriffs, big-city murder rates have risen 10 percent over the last two years. The Federal Bureau of Investigation itself puts the violent crime increase at 3.7 percent for January-June 2006. Also, drug use apparently in increasing in the nation's heartland. What does the Justice Department intend to do about this disturbing trend? Here is what the press release said last December: "Attorney General Gonzales in October announced the Initiative for Safer Communities. Through this initiative, DOJ teams are visiting 18 cities around the country to meet with state and local law enforcement agencies to find out what is causing this increase and to determine which crime-fighting efforts are most effective." In other words, it intends to study the matter.
I cannot argue that any other Attorney General would have found a way to reasonably resolve all of these problems or to otherwise have avoided some of the problems that Gonzales has faced during his two years on the job. It would be unfair to hold anyone to that particular standard. But any public servant, and especially the public servant who holds this particular high office, ought to be held to some reasonable standard. My point here is that by any measure, Gonzales has failed miserably. Failed to show independence as the "people's attorney." Failed to exercise sound legal judgment in evaluating anti-terror policies. Failed to protect his own subordinates in U.S. Attorneys offices around the country from undue political pressure. Failed to keep crime rates down. And failed to live up to the promises he made to friend and foe alike when he was nominated for the job.
You can add it up any way you like, and come at it from a conservative or liberal position, but it still totals this: a man who was proven to be unqualified for the job of Attorney General got it anyway and made a complete mess of things. Judged by performance in office, it is only slightly hyperbolic to say that Gonzales is to the Justice Department and to the Constitution what former FEMA chief Michael Brown was to New Orleans in the wake of Hurricane Katrina. President Bush Wednesday stood by his old friend "Al." At least this time, he didn't say "heckuva job."
By Andrew Cohen |
March 15, 2007; 9:06 AM ET
Previous: Part II: Alberto Gonzales, Presidential Enabler | Next: Part IV: The Case for Attorney General Patrick Fitzgerald
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