Rough Justice: The Case Against Alberto Gonzales
About this series: This is a four-part series on Alberto R. Gonzales and his role as Attorney General of the United States. Part I looks at the role of the Attorney General in American history, about current perceptions about that role, and Gonzales' view of it. Part II looks at Gonzales' record before he assumed office in 2005. Part III looks at Gonzales' record as Attorney General and the final part in the series focuses upon the candidates for his successor.
Part I: A Willing Accessory at Justice
Attorney General Alberto R. Gonzales is the 80th attorney general of the United States and if recent events in the law and at the Justice Department are any indication, he is rapidly staking a claim to being among the worst. To test that claim and evaluate the man who is not just nominally called the "nation's top lawyer," we must answer three questions. To what extent did Gonzales' public record before taking office give us clues about what sort of Attorney General he has turned out to be? Has he so far been up to the task as it is ideally defined? And, finally, does he deserve to continue to serve in office?
This series will look at each question in depth. But, here, briefly, are the answers. First, Gonzales' cronyistic record in both Texas and as White House counsel did indeed presage many of the serious problems Gonzales now faces at the Justice Department. He has run true to form over the past two years and has diverted hardly at all from his long history of dogged obedience to the President, which often has come at the cost of institutional independence and adherence to the rule of law. Second, Gonzales is seen by many legal historians and scholars as an abysmal failure--not quite as bad as the worst attorneys general in our history, but much closer to the bottom than to the top. And, third, given the burgeoning scandal over the dismissal of federal prosecutors at the request of the White House, there appear to be few legitimate reasons why he deserves to stay in office. What follows, then, is really a bill of particulars drawn up by some of the nation's leading lawyers and historians, that attempts to support these conclusions.
But first, a step back. To understand better the case for or against Gonzales, to place it more squarely into context, it is important to understand that the attorney general in our federal system has to straddle a line between law and politics, between being the people's attorney and his boss' loyal cabinet member. It is not an easy thing to do and few attorneys general have done it even remotely well. The dichotomy in many ways mirrors the one that everyday attorneys face with their own clients-- am I an advocate who must facilitate what my client already has decided to do? Or am I a counselor who may tell my client on occasion that what he or she wants to do is illegal or just plain wrong?
History has given us very little guidance about where this line is to be drawn. Actually, the history of the Office of the Attorney General is a rather uninspiring one. The position was included in the Judiciary Act of 1789, the Book of Genesis when it comes to the federal judicial system, but it took nearly a century for the attorney general to have any sort of a meaningful "justice department" to run. Originally, for a few decades anyway, the attorney general was not even part of the President's formal cabinet and now, of course, some of the duties of the original attorney general reside in the White House counsel's office. Gonzales, remember, came from that office to his current post when John Ashcroft read the writing on the wall and resigned as attorney general at the start of President George W. Bush's second term in office.
By far the strongest and most persistent criticism of Gonzales, and the one focused upon in this series, is his perceived unwillingness or inability at times to play the role of counselor rather than facilitator--to act independently of the man to whom he owes his job and his public career. Gonzales has been charged, over and over again and both before and during his current tenure, as being President's Bush's in-house and in-court "yes" man, a lawyer whose main role has been to try to justify legally, at least on its face, what his boss already has decided for political or moral reasons to do anyway. This indeed, sometimes anyway, is one of the roles of attorney general. But it is wholly at odds with the other role, that of hands-off protector of the Constitution against both internal and external threats to its viability.
During Gonzales' confirmation hearing in January 2005, Sen. Patrick Leahy (D. Vt.), then ranking member of the Senate Judiciary Committee, said "the job of attorney general is not about crafting rationalizations for ill-conceived ideas; it's a much more vital role than that. Attorney general is about being a forceful, independent -- independent -- voice in our continuing quest for justice in defense of the constitutional rights of every single American." Leahy back then expressed his concern that Gonzales did not possess the temperament, training, will, or motive to act independently from the man, President Bush, to whom Gonzales has served in one way or another ever since they both came to public service. Many others since have echoed those sentiments.
It is not hard to see why these accusations seem to have stuck with Gonazales. In July 2005, after he became attorney general, after he swore to uphold the Constitution, he was asked during an interview by folks at the Academy of Achievement to list his role models. His answer? "The three biggest influences of my life, in terms of maturing me as a person, were my mom, my dad and our President, who's given me some wonderful opportunities. I've learned a lot from him in the various roles that I've seen him in, as a father, and as a governor, and as a president."
It is a nice sentiment. But not the sort of quote likely to foster confidence among others that our nation's top lawyer would be willing to stake out when necessary and appropriate legal positions that are contrary to those of his self-proclaimed hero. And, as we'll see, when the stakes indeed have been high over the past few years, and even when Gonzales worked for then-Governor Bush in Texas, Gonzales has obediently toed his boss's line. So much so, in fact, that even before the burgeoning scandal over federal prosecutors, Gonzales' work had raised the specter of the dreaded "C" word within an administration that has come to be known for it--Cronyism. Heckuva job, Alberto!
Professor Stanley Katz, a legal historian at Princeton University, says there is no agreed upon "ideal" attorney general. And he told me Tuesday morning that the job has changed tremendous over time. But he believes that Gonzales "falls short of any ideal I can think of" and says that Gonzales has inappropriately balanced his "loyalties to the President" with his "responsibilities as a lawyer." Gonzales, says Katz, "doesn't seem to see past the relationship with his boss" and has been "a willing accessory" to some of what Katz sees as the "worst excesses" of the administration's policies.
Like Gonzales, some attorneys general have merely been pliant servants of the Presidents for whom they have worked. Others have been independent voices who have butted heads over weighty legal issues with the very people who put them into office. Invariably, posterity has well received lawyers in the latter group. For example, perhaps the most famous attorney general in American history achieved that standing from historians and legal scholars merely because he stood up to his boss. Eliot Richardson was summarily fired from the post in October 1973 when he refused to assent to the wishes of President Nixon, who wanted Richardson to fire special prosecutor Archibald Cox during the Watergate scandal. Edward H. Levi also gets good marks from historians for restore public confidence in the rule of law when he was President Gerald R. Ford's attorney general.
"About the only honest and shall we say effective attorney general of the past generation or two was Ed Levi," says Stanley Kutler, a legal historian at the University of Wisconsin at Madison. "He was politically obligated to no one and was not politically or personally connected to the president. The president (Ford) for his part was quite content to let the attorney general run his own department. It was not run out of the White House--and the news this morning about the federal prosecutors typifies the problem" of an attorney general beholden to a president. In Kutler's view, too many presidents have picked too many attorneys general in the ultimate hope that the top lawyer in the Justice Department would ultimately protect the White House.
A more recent and obvious comparison and contrast to Gonzales is Janet Reno and her tenure as President Bill Clinton's attorney general. Pilloried for her role in the disaster at Waco, Texas in April 1993, Reno famously vexed her boss (so much so that he reportedly stopped talking to her) by appointing a special prosecutor to look into the Whitewater affair, a move that begat Kenneth Starr and Paula Jones and Monica Lewinsky and ultimately the impeachment of Clinton in the winter of 1999. Reno was not necessarily a politically-savvy attorney general, had no real constituency in Washington, and did not earn rave reviews from legal scholars. But she was from time to time willing to act independently in a way that put her in direct conflict with the man who had given her the job. No similar examples stand out for Gonzales.
Almost all attorneys general have struggled to adequately describe and then balance their competing political and legal goals and responsibilities. When he was installed in office in February 2005, Gonzales himself said: "There has been much discussion during my confirmation about the appropriate role of the Attorney General; certainly an important and legitimate debate about the individual viewed by many as the primary guardian of our rights and protector of our freedoms. The Attorney General is a member of the President's cabinet, a part of his team. But the Attorney General represents also the American people, and his first allegiance must always be to the Constitution of the United States."
Eric Holder, Jr., a deputy attorney general during the Clinton administration, also used the "team" analogy when he responded to me via email on this topic. "An Attorney General has to be a part of a team and yet understand," Holder wrote, "that unlike other cabinet members, he/she has a unique responsibility. As chief law enforcement officer, the Attorney General has a responsibility to be more detached, more neutral than other Cabinet officers." John Dean, President Richard Nixon's legendary White House counsel, took the reasoning one step further in an email to me Monday. He wrote: "What is most important about the Department of Justice is to not politicize it, because it really must make decisions that effect the public interest, and the criminal justice system, and if Department is a highly political entity, it will lose trust, it will lose the best and brightest attorneys who want to work there, and then we all lose."
This, then, is the fluid and dichotomous nature of the job of attorney general. It is within the context of this history that Alberto Gonzales' record at the Justice Department should be judged. But before we get to that, in Part III of this series, we need to look at his record in Texas and as White House counsel. That record is the focus of Part II, coming up tomorrow.
Part II: Presidential Enabler
Three episodes in the career of Alberto R. Gonzales before he became Attorney General of the United States tell us what kind of a job he was likely do as the nation's top attorney at the Justice Department. In each instance, history has not been kind either to Gonzales' actual substantive work or to the ethical and moral judgment he exercised on behalf of his clients at the time. In each case, the advice Gonzales offered -- legally dubious to begin with -- created not just political embarrassment and backlash for his bosses, but unfortunate, even catastrophic results.
Not only did the three pre-Justice Department episodes turn out to be remarkable predictors for his troubled and disappointing tenure as Attorney General -- but many predicted two years ago that they might be. For example, Sen. Patrick Leahy (D.-Vt.) looked Gonzales in the eye at the latter's Senate confirmation hearing in January 2005 and said: "My concern is that during several high-profile matters in your professional career you've appeared to serve as a facilitator rather than as an independent force in the policy-making process."
Gonzales reassured Sen. Leahy -- and anyone else who cared to lodge the same complaint back then -- that he knew the difference between the role he would have to play as Attorney General and those he had played as White House counsel and as counsel to then-Texas Gov. George W. Bush.
But let us judge him by his deeds and not his words. The Attorney General's record at the Justice Department strongly suggests that he has still acted as a docile and dogged "facilitator" for White House initiatives rather than as a wise, high-minded legal counselor willing and able on occasion to exercise independent judgment and power. The roads to the current scandal over the dismissal of federal prosecutors, to the Justice Department's rabid support for warrantless domestic surveillance, and to department's tepid defense of civil liberties for resident aliens all are paved with stones that Gonzales and Bush laid down before the former took the oath of office in early 2005.
For the first two examples, I lean heavily upon the distinguished work of Alan Berlow, who brilliantly chronicled in the July/August 2003 issue of The Atlantic Monthly Gonzales' appallingly unprofessional work on death penalty cases when he was counsel for Gov. Bush. According to Berlow, Gonzales "repeatedly failed to apprise Bush of some of the most salient issues in the cases at hand: ineffective counsel, conflict of interest, mitigating evidence, even actual evidence of innocence" (emphasis in original) in a series of memoranda Gonzales prepared for the governor's review as part of the state's clemency process. Berlow believes that this was not mere negligence on the part of Gonzales -- that would have been bad enough -- but rather part of a concerted effort by both men to ensure for both political and ideological reasons that there would be no clemency petitions granted. The dice were loaded, you might say, by the man who now is the nation's top lawyer.
In one clemancy case, Berlow accounts, Gonzales failed to include in a memo to Bush the fact that the lawyer for a death row inmate "had literally slept through major portions of the jury selection." In another case, Gonzales failed to include in a memo to Bush the fact that an important prosecution witness had recanted following trial or that an expert witness vital to the prosecution's case had been subsequently expelled from the American Psychiatric Association "because his testimony had repeatedly been found to be unethical." Berlow now tells me that he believes that Gonzales "put the end -- execution -- above the means, some sort of meaningful clemency review." This is precisely what Sen. Leahy was talking about when he spoke of Gonzales as a "facilitator" and precisely the opposite of the role the best attorneys general in our history have played.
When this vital story first emerged, back when the Bush Administration was flying high -- Mission Accomplished! -- and Gonzales was White House counsel, few media heavyweights gave the Texas clemency story much play.
Since then, however, we have seen a not-so-subtle shift in attitudes about death penalty procedures in this country, especially among judges and prosecutors who count. The trend now is toward giving capital defendants more protections, not fewer ones, even in Texas, and I daresay that whatever ambivalence observers may have felt back in 2003 about Gonzales' work on the clemency memos is now gone. It was shoddy business, all around, and the lawyer responsible for it should have been fired, not promoted.
The next charge in our bill of particulars against Gonzales also traces back to his days in the Lone Star State and provides us with a legal link from Texas' death row to the infamous Abu Ghraib prison in Baghdad. Once again, let's rely upon Berlow. Writing for slate.com in June 2004, he cited two examples wherein Gonzales legal advice to Gov. Bush ran afoul both of constitutional law and the Vienna Convention on Consular Relations. In one case, involving a Mexican national name Irineo Tristan Montoya, Berlow writes that Gonzales told Mexican officials that since Texas had not signed the Vienna Convention the state was not bound to determine whether local police had violated it when they arrested Montoya for murder. Problem is, as Berlow noted, Article 6 of the Constitution states that federal treaties are the "supreme law of the land" and cannot be trumped by state laws or policies. That's first-year law school stuff, by the way.
In another case Berlow chronicled, Gonzales described as a "harmless error" an acknowledged violation of the Vienna Convention in the case of a Canadian national named Joseph Stanley Faulder. Faulder was executed shortly thereafter. And then what happened? In March 2004, the International Court of Justice in The Hague ruled that America had violated on a wide scale the right of 52 Mexicans, including 15 in Texas. Now, we can argue about the scope of international laws and treaties and the effect they ought to have on our domestic legal system. But it is impossible to argue that the legal analysis Gonzales offered his boss in these cases have stood the test of time. And, of course, we see here in the stretching and bending of law and fact from Texas the clear precedent for the "torture" memos that no doubt will come above the fold when Gonzales' obituary, political and otherwise, is written.
Indeed, of Gonzales' "torture" memo of January 25, 2002, the one that helped beget Abu Ghraib and the predictable scorn and recriminations it has caused us abroad, there is not much to add to an already overflowing record that generates a black mark upon all who were involved. As White House counsel, Gonzales was in a position to at least record an objection to our government's change of long-standing policy when it came to the use of torture against enemies captured in the war on terror. It is unlikely that such an objection would have prevailed, given the Machiavellian currents then making their way through the White House and Pentagon, but the President's official lawyer could have been and should have been as brave as some of the lower-level staff attorneys within the Defense Department who rightfully saw how far afield their superiors were going in changing basic fundamental tenets of law and policy.
On Tuesday, I asked Berlow, who does not cover Gonzales on a regular basis, whether he sees any connection between the Gonzales he studied in Texas and the one he sees now as Attorney General. He told me: "His priority has always been to do his boss's bidding." Berlow also told me that Gonzales' pre-Justice record shows a cavalier pattern of carelessly justifying policy decisions. "The administration has an attitude of "anything goes" and "we will find a rationale to justify what it is we want to do--if we are caught," Berlow told me. "What was astonishing in Texas is that they got away with it."
The Texas clemency memos, the Vienna Convention posture, and the infamous torture memo, suggest one of two things about Gonzales' career before he became Attorney General. If you are willing to give Gonzales the benefit of the doubt, and free him from any accusation of willfulness, then he appears to be a incompetent attorney who was not thorough enough to give his clients the best and most complete factual and legal analyses. If that's the case, the President had no business making him the nation's top attorney when there were and are so many other qualified candidates. If that's the case, the dreaded "crony" label fits Gonzales like so many of his red ties. Another "yes" man. Another subservient team player in a position where an independent thinker was needed.
If, on the other hand, you are not so forgiving of Gonzales, and you see in the clemency memos and Vienna Convention stance and torture memo a pattern of purposefully uncritical analysis and judgment, then history's verdict against the Attorney General is even worse. His memos about Texas' death row inmates allowed his boss to do what he wanted to do--ensure the execution of capital defendants -- even though the law required a much more thorough review. His subsequent memo about torture from the White House counsel's office helped allow the military to treat prisoners the way it wanted to -- even though the law fairly said otherwise. It is no wonder that Sen. Leahy was worried back in January 2005 that Gonzales would not have the moxie to say no when he needed to.
"Sycophant" is just one of many uncomplimentary but pointed words used by my sources for this series to describe Gonzales' work and attitude toward his role as counselor. For now, until tomorrow, let's leave it to former White House counsel John Dean, who knows a great deal about the way the Justice Department should be run, or not run, to sum up Gonzales' qualifications before he took over as Attorney General. Dean told me in an email earlier this week: "Frankly, I have a degree of sympathy for Alberto Gonzales, who I suspect is a terrific Texas real estate attorney."
Part III: 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."
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.
By Andrew Cohen |
March 13, 2007; 12:00 AM ET
Previous: Big Win for Gun Rights' Advocates With More Fights to Come | Next: Part I: Alberto Gonzales: A Willing Accessory at Justice
Please email us to report offensive comments.
Posted by: On the plantation | March 22, 2007 08:08 PM
Posted by: Aldous | March 22, 2007 11:39 PM
Posted by: nat | March 23, 2007 03:15 AM
The comments to this entry are closed.