Part IV: The Case for Attorney General Patrick Fitzgerald
If the first three parts of this series have made a reasonable if not airtight case for the resignation or firing of Alberto Gonzales as attorney general, and with his legal and political failings becoming clearer by the day, it seems only fitting that this final part make the case for a particular successor.
Clearly, the next head of the Department of Justice must be many of the things that Gonzales is not. The new chief must be strong and independent -- and with a long history of being a successful federal prosecutor. He or she must not be beholden to the White House or be an ideologue. He or she must possess the respect of the foot soldiers within the Department of Justice and thus be able to restore some of the lost credibility, confidence and morale that marks the current regime. And, of course, he or she must be a Republican (or at least an existing Republican-appointee, thanks commenters for pointing this out).
The Justice Department "needs a swing" says Phillip B. Heymann, Harvard Law professor and former deputy attorney general during the Clinton presidency. "It needs someone who will concentrate on institution building. On restoring credibility -- very much a rule of law type." Heymann told me Thursday that he believes that the current Attorney General and his political allies in the White House have taken the Department "further into a political institution and undermined its attractiveness to young lawyers as well as America's faith in its neutrality, its nonpartisanship." Gonzales' successor, Heymann says, "needs to be scrupulous about neutrality of prosecutors" and must re-establish old-guard rules that "protected the independence of federal prosecutors."
On the Republican side, another former high-ranking official, Bruce Fein, who was associate deputy attorney general during the Reagan administration, echoed Heymann's views and then took them one step further. We need an attorney general, Fein told me, who has the "moral and emotional and psychological strength to resist predictable efforts to manipulate the Department of Justice for political purposes." Gonzales, Fein says, is "a total creature of the White House" who is "unable to have the ability to resist" his benefactor the President whom, Fein alleges, is trying to "cripple" the notion of checks and balances.
The next attorney general, Fein said Thursday, should immediately "issue a memorandum to the Congress and to the White House" informing both "that any gripes about prosecutors they may have should be funneled through the Attorney General and not through the prosecutors themselves." Another memo Fein would write, he told me, would be to remind U.S. Attorneys that they must immediately report any improper conduct or pressure--of the sort that occurred here with at least one federal prosecutor--brought by members of Congress or executive branch officials. And, for good measure, Fein would want the next Attorney General to get a public commitment from the President to abide by those rules.
In my humble opinion, and recognizing that there may be a few other worthy candidates, there is only one person who perfectly currently fits the bill. He is a Bush-appointee, either an independent or a Republican, but not a partisan or a crony or a hack like so many other current appointees. He has a sterling record of integrity and doggedness. He is obviously his own man and has shown a remarkable tendency during his career as a prosecutor for rankling partisans on both sides of the aisle. He is beholden to no one. His nomination to head the Justice Department by President Bush, and his ratification by the Congress, would send a clear message to the country that our government is willing to turn the page on the sordid recent history of the Office of Attorney General. His name? Patrick J. Fitzgerald.
Can you think of a better candidate to restore honor and integrity to the Justice Department than the man who just took on the White House, and won, with the perjury and obstruction trial of I. Lewis "Scooter" Libby? Can you think of a person more likely to erase the standing charge of cronyism that seeps through the current administration like a stink bomb? Can you think of someone whose political and legal reputation throughout the country is as high right now, among Democrats, Republicans and Independents alike? Can you think of a better choice than a Washington outsider who made his bones as an Elliot Ness-like figure long before he won his latest case?
Fitzgerald has a sterling record as a line prosecutor. When he was in New York at the U.S. Attorney's office, he participated in the African Embassy bombings trial as well as the terror trials of Omar Abdel Rahman and Ramzi Yousef. He also has prosecuted organized crime cases and has anti-terror experienced since 9/11 as well. His undergraduate degrees are in mathematics and economics, he graduated from Harvard Law School, and I daresay that in a Jeopardy competition with the current Attorney General he would probably win before the bonus round. Oh, and he has few political skills -- but wouldn't that be refreshing for the fellow who would be the nation's top lawyer?
He has no experience in academia, but that shouldn't count against him. And he proved during the Libby trial, and the seemingly endless litigation that preceded it, that he could master intricate legal policy and then communicate it effectively to the court and the court of public opinion. My media friends won't like the choice because Fitzgerald put such a squeeze on the first amendment by subpoenaing reporters. But so what? A federal shield law, which ought to be passed by Congress no matter what happens with Gonzales, would help protect journalists while still allowing aggressive prosecutors like Fitzgerald to do their jobs.
Of course, Fitzgerald's investigation into White House wrongdoing over the Valerie Plame Wilson affair all but dooms as a practical matter his chances to become the next Attorney General. Can you imagine the installation ceremony with Fitzgerald thanking President Bush for giving him the job? Can you imagine what the cabinet meetings might feel like? But just because the White House is unfriendly territory for Fitzgerald doesn't mean his selection isn't the best thing for the nation and the Justice Department. If Nixon could go to China, and if Reagan could make peace with the Soviets, our current president surely could embrace his former nemesis for the sake of harmony.
"I don't know [Fitzgerald] well," Heymann said of Fitzgerald. "But, yes, he would be a good choice. He was careful with the Libby case. He was under a lot of pressure to bring charges on the leak itself--but he didn't do that. He was under pressure to bring charges against Rove--but he didn't do that. Instead, he put together a very strong factual case [against Libby]." Indeed, as someone who covered the Libby trial, I can attest to the fact that Fitzgerald infuriated Republicans and Democrats, conservatives and liberals, alike, a trait which alone ought to make him a candidate for the office. "Only Scooter Libby and Dick Cheney could oppose him," added John Dean, former White House counsel.
Fein disagrees. He is promoting D.C. Circuit Court of Appeals Judge Laurence H. Silberman to replace Gonzales. He says that Judge Silberman has the "philosophical understanding of checks and balances" that Fitzgerald may lack. The prosecutor, says Fein, "hasn't sat around like Larry and thought about separation of power, and the philosophies of the Founding Fathers and the place (at the Justice Department) is no place for on the job training."
Now, I don't know how Fein knows what Fitzgerald sits around and thinks about. But Silberman has a reputation for being a sharp legal ideologue--not exactly the type likely to bring together the disparate factions within the Department left in the rubble of Hurricane Gonzales. And, anyway, if I had to go to a Plan B, my choice would be James B. Comey, who almost alone among current high-ranking Justice Department officials had the courage to reject on legal grounds the National Security Agency's domestic surveillance program. Comey, in fact, led an ill-fated rebellion within the Justice Department to block approval for the plan, a high-minded revolt that was quashed by, among others, then-White House counsel Alberto Gonzales.
But let's stick for now with Plan A. I tried to contact Fitzgerald for this column. Not surprisingly, I could not get past his spokesman, who assured me that it wasn't worth my time or his to put the questions I had to his boss. "No comment whatsoever" is what I got for my effort and I'm not sure that I blame Fitzgerald. The more distant he stays from the current controversy surrounding the Justice Department, the better chance he'll have of emerging from the rubble in good shape to begin the next phase of his career, whatever that turns out to be. Never mind the late, great Eliot Richardson, who in the end stood up to President Nixon. We need the Eliot Ness.
Gonzales has got to go, for the good of his party, his president, and the nation. And in his place the White House ought to bite the bullet and embrace the tough love that Patrick Fitzgerald represents. For the Justice Department, the Age of Cronies is over and the Age of the Professionals ought to begin (again). It won't happen. But that doesn't mean it shouldn't.
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