The Way Out of the Gonzales Mess

President George W. Bush said yesterday that his Attorney General, Alberto R. Gonzales, has "done nothing wrong." Meanwhile, Democratic lawmakers continue to make plans to try to hold a "no confidence" vote on Gonzales, Capitol Hill prepares for former Justice Department official Monica Goodling's testimony on Wednesday, and Republican lawmakers continue to leave the Good Ship Gonzales in packs. It's time, in other words, for a smart deal.

The spin out of the White House is that the President is sticking with Gonzales because he does not want to undertake the ordeal, the conflict, of two high-profile Justice Department confirmation battles (one for Gonzales and one for his recently-departed deputy, Paul J. McNulty). Never mind that the Department itself is a shambles and getting worse. Or that Gonzales has zero credibility on Capitol Hill. Or that the President-- any president-- should be able and willing to put the interests of justice ahead of political chits: the White House is concerned that the politics of a post-Gonzales world would be even worse than the misery Gonzales offers the administration today. So here is how the Democrats in Congress can change the whole nature and dynamic of the debate.

Congressional leaders should gin up a bipartisan group of senators and representatives-- say, six people total-- and then have those folks come up with a very short list of candidates for the positions of attorney general and deputy attorney general. At the top of that list should be James B. Comey-- he is far and away the most qualified candidate for the job-- but it should also include other smart, energetic and integrity-laden lawyers. Making the list should be only those candidates who can and will immediately garner loyalty and confidence within the Department and also command respect in Congress and among the nation's federal judges, who surely are watching the scandal over federal prosecutors with a growing sense of alarm.

The Congressional delegation then should take its list to the White House and negotiate with, say, White House counsel Fred Fielding, to narrow down the choices. There ought to be some give and take-- the lawmakers should be open to suggestions from the White House about possible candidates for Attorney General and Deputy Attorney General so long as there are no Alberto Gonzaleses or Michael Browns in the lot. And at the end of that process, the lawmakers should be able to go to the President himself and say: "Here. Here are the names of a few good men and women, any two of whom could and should lead the Justice Department out of the wilderness. We have selected these people not just because they are Republicans or Independents but because they are professionals and because we believe that they will run the Justice Department without fear or favor and thereby instill back into the process the notion that the law is blind to political affiliation.

"If you nominate these people," the lawmakers should say, "you will have no problems with us in Congress when they seek to be confirmed. We also will work with you to wind down the investigation into the U.S. Attorney scandal. But if you allow Gonzales to continue in office, or if you choose to nominate another rank partisan for his post, you will indeed have problems on Capitol Hill." How would the President respond to such a pitch? It would be hard for him to denounce it as "political theatre"-- the slogan the White House now seems so fond of when it tries to explain the inexplicable conduct of Gonzales and his immediate subordinates. And it would be hard for the White House to denounce it as a Democratic trick since GOP lawmakers like, say, Sen. Arlen Specter (R-Pa.) would be part of the delegation. Could it work? I don't know. But it's worth trying as a way out of this sorry mess. And if it does work, we all will be better off-- with a competent Attorney General, a functioning Justice Department, and a new commitment to the rule of law.

By Andrew Cohen |  May 21, 2007; 7:48 PM ET agag
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Harriet Miers?

Just kidding...

Posted by: Chris M | May 22, 2007 09:34 AM

This would never work in a million years. You have the bipartisan group saying "We have selected these people..." That's the Decider's job, nay, God-given right. To suggest otherwise is sheer folly.

He will tell you who he decides on. That's the only way he works.

Posted by: AC | May 22, 2007 09:44 AM

This will never work. What would happen to the Bush administration if the Dept of Justice actually behaved without fear or favor, somebody, maybe somebodies would go to jail. That is why we still have Gonzales and that is why the Bush administration will attempt to keep him no matter how badly Gonzales(by only doing what he is told) sullies OUR system of justice.

Posted by: Pat K | May 22, 2007 09:58 AM

This will never work. What would happen to the Bush administration if the Dept of Justice actually behaved without fear or favor, somebody, maybe somebodies would go to jail. That is why we still have Gonzales and that is why the Bush administration will attempt to keep him no matter how badly Gonzales(by only doing what he is told) sullies OUR system of justice.

Posted by: Pat K | May 22, 2007 09:58 AM

Given the Commander Guy's history I think that he would inevitably see a bipartisan approach as a threat to his unilateral authority. Not too likely to happen.

Posted by: JP2 | May 22, 2007 10:00 AM


For those of you who are interested, I have the brand new, May 21 issue of LEGAL TIMES magazine-and guess who has the cover article? Why my favorite person in the whole world-PAUL MCNULTY! Huge Huge Article! Very very interesting! Run out and buy it people, before Goodling testifies on Wednesday!

Here's a sampling!

"With Goodling's scheduled appearance before the House Jud. Comm'tee on May 23, McNulty could find the scandal hard to put behind him. Goodling's version of events may contradict McNulty's statements and spur further questions (or appearances) on the Hill. The judiciary committees are also likely to try to exploit what looks to be an ever widening rift between McNulty and Gonzales as well."

Now HERE'S THE KICKER:

"It's unclear how signficant a hurdle the controversy will present as McNulty searches for a job in the private sector. Some law firms and major corporations may want to steer clear of anyone connected to the scandal. WHAT'S MORE, MCNULTY LACKS ANY REAL TRIAL EXPERIENCE."

Hey! Someone is stealing Chiaramente's posts, I think!

But the best for last:

"...leading the U.S. Attorney's Office in the ED Va. AND THE LARGELY BUNGLED EFFORT TO WIN A DEATH SENTENCE FOR ZACARIAS MOUSSAOUI."

Can you spell-OPR?

Sweet, sweet karmic payback time! (sorriso grande)


Posted by: | May 22, 2007 10:01 AM

You present a good idea, but it would require the White House to acknowledge that Congress may occassionally play a legitimate role in formulating public policy -- something it could not swallow even with a GOP-controlled House and Senate.

Posted by: Ian | May 22, 2007 10:10 AM

what you're offering sounds like a "grand bargain"-Bush picking a consensus AG in exchange for a full stop to the investigation.

otherwise we'll have a replay of Elliott Richardson-not necessarily a bad thing. but Bush won't buy it. Gonzo seems to be the one Bush will go down to the mat over. let's hope.

Posted by: susan | May 22, 2007 10:16 AM

My My My! How times DO change from one year to the next !

Now, in that same Legal Times Article, it says the following about PAUL MCNULTY:

"Most fatal was McNulty's now infamous assertion that the seven prosecutors sacked on Dec. 7 had been asked to go for "performance related" reasons. That statement at a Feb. 6 hearing before a Senate Judiciary subcommittee, was directly contradicted in most of the cases by the Justice Department's own internal performance reviews."

YES YES YES!

"I found it incredibly disingenuous of him to GO UP AND SLANDER THESE GOOD PEOPLE, says Mark Corallo, who was a spokesman for then-Attorney General John Ashcroft and has emerged as an outspoken critic of McNulty.

Mark! Paul McNulty? "Slandering good people?" You MUST be kidding! That's like saying Jerry Markon, Andrew Cohen, the Times reporters, etc., aren't idiots because they believe everything some thug federal prosecutors tell them to believe, and so "leak" whatever they are given! Ha Ha Ha!

Hey, wait a minute- just thought of something! You don't think Monica Goodling tomorrow might say that Paul McNulty was slandering HER, do you?(given that she and he were in the same meetings together, how IS it that he says she's solely to blame, huh?...scratching my head over that one!)

And maybe, that she might say HE'S A LIAR AND CONCEALER OF INFORMATION, WOULD YOU?

Nah! That would NEVER HAPPEN! This is your DOJ at work, folks! Embrace it! And be like those Post reporters, who lap up everything a government official tells them just like a kitty lapping up a bowl of milk!

Mark, I don't know you, but I LIKE YOU ALREADY!

Posted by: Chiaramente | May 22, 2007 10:27 AM

Perhaps I am simply too weighed down by cynicism towards Mr. Bush and his closest advisors, but it is inconceivable to me that the Decider would put James Comey, or any other "smart, energetic, or integrity-ladan lawyer," in charge of the Justice Department. It could hardly be clearer that the attributes Mr. Cohen suggests as qualifying a candidate for the posts of AG and DAG are precisely the combination of attributes that Bush (and Cheney and Rove) do NOT want at the Justice Department. Not many persons would have put John Ashcroft at the top of any list of potential attorneys general, yet we now know that even he created some problems for the White House gang. It was to make sure that wouldn't happen again that Bush put Gonzales in charge. Why would he now dismantle the protective shield he created with the appointment of Gonzales by putting in a "smart, energetic, and integrity-laden" AG? From the get-go, Bush's first qualification for a high federal appointment has been that the appointee be, in the memorable words, of Gonzales' chief of staff Kyle Sampson, "a loyal Bushie." I would think that would exclude even presumable shoo-in candidates like Orrin Hatch who, though still supportive of the Bush administration and even of Gonzales, is not likely to take a political bullet for the Commander Guy. If there ever will be a replacement for Gonzales, and I'm still very doubtful, I'll put my money on Michael Chertoff. Besides his service as Homeland Security Secretary, he was an Assistant Attorney General for the Criminal Division and a federal appeals court judge. The frosting on the cake is that he served as Republican special counsel on the Senate Watergate Committee, a scourge to the Clintons and to Democrats. All of this makes him perhaps over-qualified compared to other loyal Bushies (consider for example the resumes of Kyle Sampson and Monica Goodling), but at least he is more 'reliable' and less dangerous to the regime than Mr. Comey and those of his ilk.

Posted by: P. Bosley Slogthrop | May 22, 2007 10:43 AM

Cohen Cohen Cohen-You REALLY don't get Washington, do you? Do you SERIOUSLY think your "golden boy" James Comey (who curiously, likes to hire snake-like lawyers in his own mode to work for him at Lockheed Martin) is going to get the nod to be AG from the WHITE HOUSE?

After he "embellishes" and dramatizes that hospital scene to help his boy McNulty?

I just can't seem to quit laughing until I cramp these days about DOJ-the karmic payback is making me bust a gut!

God, Cohen, you are REALLY naive!

Posted by: | May 22, 2007 10:43 AM

As a retired federal prosecutor, I can tell you first-hand that alot of very decent men and women who have given their lives to the service of justice and their country are at the brink of despair over this administration. Every day, I think that it can't get too much worse for the DOJ, and every day it does. In my opinion, even Brownie did a better job at FIMA than Mr. Gonzalez is doing now.

Posted by: Sad Man | May 22, 2007 10:47 AM

I know, it's FEMA, not FIMA. My apologies.

Posted by: Sad Man | May 22, 2007 10:48 AM

That bipartisan committee's report would be embraced by the WH just as warmly as was the Baker commission report. If they name anyone with integrity as AG, that person would likely start investigating (and cleaning up) Rove's machinations on their own initiative.

Posted by: david | May 22, 2007 10:52 AM

I am not a litigator but in addition to Comey I would nominate Patrick Fitzgerald, at one time incredibly on one of Kyle Sampson's early hit lists.

According to news reports, Pat is a registered independent and doesn't seem to have a political bone in his body. What's more, he's the Irish version of the Horatio Alger story. His parents were Irish immigrants and I believe his father worked as a doorman in Manhattan. I know the Irish aren't considered a minority, but still, it's a good story and shows his character and determination.

I greatly admire his handling of the press in the Libbey case. I love his "no comment" stance. Totally appropriate-sort of the anti-Nifong.

As an aside, I am so sick of lawyers acting as PR hustlers/flacks for their clients in front of the press. One of the worst examples was Wolfie's lawyer Bennet [sp] who appeared before the press during the denouement of the WB imbroglio and said something to the effect of "I promised the board of the World Bank that I wouldn't discuss anything that was said during our meetings, but this much I can tell you [insert information he pledged not to reveal]."

Moreover, others more knowledgeable than I have praised in the press Pat's handling of the Plame investigation and his prosecution of Libbey for factually supported charges of perjury and obstruction of justice, rather than trying to "go after" Rove and/or Cheney on flimsy evidence. Sort of the anti-Starr.

Unfortunately, given what I know of Mr. Fitzgerald's personality and lifetyle(based solely on news reports, not personal knowledge), he might just not want the job. He may want to stay in the courtroom instead of dealing with all of administrative BS and PR work the AG has to put up with. Not sure I would disagree with him.

Anyway, I vote for Pat as one of the candidates.

Posted by: Reatty | May 22, 2007 11:02 AM

Reporters lapping up anything the White House tells them goes way beyond the AG imbroglio. Perhaps Gore could have kept Florida. Perhaps we could have avoided the Iraq War. Perhaps Kerry could have kept Ohio--all if the press corps had done its job. Nine eleven wiped out more than the Twin Towers; it seems to have wiped out critical thinking. Nellie Bly where are you?!

Posted by: Dave | May 22, 2007 11:19 AM

While I agree that Bush will not do anything now, as he sees a post-Gonzo environment as worse than the present one, I don't agree with the prescription. I think that the Dems should ratchet up the pressure through more investigations and agitating for the appointment of a special prosecutor- with a mandate to produce an interim public report in three months (so Bushco won't be able to run out the clock.)

Posted by: Barney | May 22, 2007 11:54 AM

Creation of a special prosecutor position, restoration of habeus and the invalidation of signing statements should be the price of an otherwise "clean" Iraq funding bill.

Or even the just the prosecutor. Would Bush veto war funding only to avoid investigation of criminal behavior? There is nothing to fear if you've done nothing wrong, right?

Posted by: wrb | May 22, 2007 12:33 PM

9-11 sure did decisively wipe out critical thinking. But you know, the assault on it has been thoroughly underway for the last few decades(which has now, simply from the U.S.'s example and its exports infected much of the rest of the world) moral equivalence, journalistic "fairness" doctrine(not real fairness, but a blindly giving play to two opposite sides even when that is not the situation), a public encouraged to benefit by automated reactions without the effort of thinking or even giving attention(why be responsible when can get anything one wants by being selfish? Why "limit" oneself by making an effort not for oneself and one's own, unless one so "chooses" in order to feel good?)etc.. are just a few contributing influences of a trend that has been underway for several decades.
Not true of some certainly, but as the WH says, they are becoming "increasingly irrelevant" given an overwhelming majority. Cassandras aren't mainstream in the U.S., nor do many like to hear their voices when they go against the grain.
Too bad, because the entire advertising-based economy(with few regulations on false claims)and the design of government rest on nothing other than this faith in the public's, or at least their representatives' (who are supposed to know better)ability to think and evaluate objectively (not possible to do, one says? if that is the assumption made, just shows the extent of the social problem).

Posted by: Josh | May 22, 2007 02:13 PM

9-11 sure did decisively wipe out critical thinking. But you know, the assault on it has been thoroughly underway for the last few decades(which has now, simply from the U.S.'s example and its exports infected much of the rest of the world) moral equivalence, journalistic "fairness" doctrine(not real fairness, but a blindly giving play to two opposite sides even when that is not the situation), a public encouraged to benefit by automated reactions without the effort of thinking or even giving attention(why be responsible when can get anything one wants by being selfish? Why "limit" oneself by making an effort not for oneself and one's own, unless one so "chooses" in order to feel good?)etc.. are just a few contributing influences of a trend that has been underway for several decades.
Not true of some certainly, but as the WH says, they are becoming "increasingly irrelevant" given an overwhelming majority. Cassandras aren't mainstream in the U.S., nor do many like to hear their voices when they go against the grain.
Too bad, because the entire advertising-based economy(with few regulations on false claims)and the design of government rest on nothing other than this faith in the public's, or at least their representatives' (who are supposed to know better)ability to think and evaluate objectively (not possible to do, one says? if that is the assumption made, just shows the extent of the social problem).

Posted by: Josh | May 22, 2007 02:13 PM

Goodling's attorney is acknowledging that there are still many documents that his client has not turned over, in defiance of a congressional subpeona because of clearance issues with the DOJ?

And apparently he just brought this issue to the DOJ's attention this past Friday?

Give me a break.

I would cancel tomorrow's hearing and withdraw the immunity grant. Leverage this by getting convictions first. It will take longer, but it will put an end to these games.

Posted by: JP2 | May 22, 2007 04:00 PM

jp2--I'm afraid you're not as "clever" as you believe yourself to be. Those are very legitimate reasons-you see, Goodling is the subject of a DOJ investigation, and if she improperly turns over documents, she could be in very big trouble with DOJ-so yes, it is a bit of a catch-22, but her lawyers are doing the right thing-she needs to get the appropriate clearance to release said documents, which must come from the DOJ, since the DOJ, and not Monica Goodling, is the owner and originator of those documents.

Posted by: | May 22, 2007 04:09 PM

Bush won't listen to your excellent idea. I still hope someone trys it.

On another subject: I am sick of that other party refusing to call my party the Democratic Party. Sooo, I will take a chapter from their mean book and get even.

They are now the Republic Party. Always and forever more. The Rush Republics should LOVE this new name. Join me.

Posted by: jo Jones | May 22, 2007 04:09 PM

Bush won't listen to your excellent idea. I still hope someone tries it.

On another subject: I am sick of that other party refusing to call my party the Democratic Party. Sooo, I will take a chapter from their mean book and get even.

They are now the Republic Party. Always and forever more. The Rush Republics should LOVE this new name. Join me.

Posted by: Jo Jones | May 22, 2007 04:11 PM

Bush won't listen to your excellent idea. I still hope someone tries it.

On another subject: I am sick of that other party refusing to call my party the Democratic Party. Sooo, I will take a chapter from their mean book and get even.

They are now the Republic Party. Always and forever more. The Rush Republics should LOVE this new name. Join me.

Posted by: Jo Jones | May 22, 2007 04:11 PM

it is a tale told by an idiot, full of sound and fury, signifying nothing

Posted by: | May 22, 2007 04:14 PM

Anon 4:09 PM, That's all well and good. But given that Goodling has been out of her job for over a month now, and that the subpeona was issued over two weeks ago, why would her attorney determine this past Friday--"OH that's right, we not only have documents that are responsive; but we have to get clearance first from the DOJ!"

If the witness and her counsel were in fact, good-faith operators, then on what basis would they wait a day before the hearing to alert the Committee Chair to these issues. There is no reason why they couldn't have approached the Conyers two weeks ago--or even a month ago--and said: we have documents that are material to this case. We do not believe that we can release them to you without DOJ authorization, but we want you to know that we are cooperating with the investigation, and not behaving in a manner contrary to both the spirit and letter of the law.

Cancel the hearing, and revoke the immunity grant--that's my view. Look into criminal charges; if they have merit, pursue them. But don't play these kind of games.

Posted by: JP2 | May 22, 2007 04:25 PM

No question- immunity should be revoked & the hearing canceled.

Posted by: wrb | May 22, 2007 05:34 PM

Instead of having one government with co-equal branches and separation of powers, it seems as if we have two governments, one run by the "Republics", to use Jo Jones' term, and one run by the Democrats. They are hostile to each other and work at cross purposes. When the public interest is served, it's likely to be an accident. It reminds me of an old law professor of mine who used to say of the courts in Chicago (in the old days, before Operation Graylord), "Justice is done when the fix is equal." The House Judiciary Committee will not have the benefit of the documentary record when it questions Ms. Goodling so the examination of her will be less probing than it otherwise would be. The situation will be not very comfortable for Ms. Goodling however since she is still under the obligation to tell the truth to preserve the benefit of her immunity agreement and avoid a perjury charge and she doesn't know whether and when any withheld documents may be acquired by the committee. In light of the immunity agreement, it doesn't seem that she is particularly benefited by the withholding of the documents, but I may well be missing something that a good criminal law practitioner would know.


Posted by: P. Bosley Slogthrop | May 22, 2007 08:05 PM

It's a non-issue-Goodling will have MORE than enough documents that Congress will give her, in addition to those that are cleared for her use, to make her testimony very very bad for McNulty!

Posted by: | May 22, 2007 08:17 PM

With all due respect, I find some problems with your basic assumptions in this entire debacle. But you are not alone. Almost every responsible person writing about the politicization of the Justice Department has failed to note two basic consequences that would follow Gonzales' resignation:
1) A truly independent AG may refuse to certify the Bush administration's domestic spying, torture and abuse of civil liberties. It is more than possible that the secrets actions that were protected by having the ultimate Bushie serve as AG are worse than impeachable.
2) An honest AG may feel obligated to turn over those e-mails that will implicate Karl Rove and possibly Bush himself in the plot to steal elections through Justice Department manipulation.
Bush has more to lose than a loyalist AG.

Posted by: Shannon Parker | May 22, 2007 08:52 PM

"Bush has more to lose than a loyalist AG."

When you got nothin', you got nothin' to lose!--Bob Dylan.

Posted by: thrh | May 22, 2007 11:50 PM

As for Goodling? Throw her to the wolves. Hold her in contempt of Congress and clap her in jail.

Posted by: thrh | May 22, 2007 11:53 PM

No fear of a recess appointment? 'Tis the season, as of Friday -- and Bolton at State, as well as Dudley at OMB, now have paved the way. No need for the Right Rev. Sen. Danforth (not to mention Hatch) in that event. Compared to continued Gonzo degradation of Justice 'til 2009, it's actually wishful thinking. Perhaps this calls for a "consensus"?

Posted by: G,. Hall | May 23, 2007 05:28 AM

No fear of a recess appointment? 'Tis the season, as of Friday -- and Bolton at State, as well as Dudley at OMB, now have paved the way. No need for the Right Rev. Sen. Danforth (not to mention Hatch) in that event. Compared to continued Gonzo degradation of Justice 'til 2009, it's actually wishful thinking. Perhaps this calls for a "consensus"?

Posted by: G,. Hall | May 23, 2007 05:28 AM

I like your proposal, but I agree with many others on here. . . I don't think Bush would go for it. I would still love to see an attempt though. If Bush declines, which he most likely would, it will make him look even worse.

Posted by: Nite | May 23, 2007 09:09 AM

Jo,

Perhaps the "publican" party is more ironic. The moniker would be more meaningful to one of their core constituencies.

Posted by: HypocrisyAlarm | May 23, 2007 09:26 AM

Wind down the investigation? I can't agree with that. This investigation has continued to turn up evidence of shocking attempts to politicize the DOJ in order to foist one-party rule on the people of the United States - which was a deliberate and direct attack on the foundations of our democracy.

And we still don't know the entire picture. Winding down the investigation would cut off the flow of information, and leave the people ultimately responsible for this subversion of our democratic ideals untouched. Does anyone really think that they'll suddenly show restraint?

No, if they get away with this, the next thing they do will be WORSE. More blatant, more criminal. They'll just do a better job of covering it up.

A functioning DOJ is NOT worth the price of allowing a rogue administration to cover up its high crimes and misdemeanors.

Posted by: Peter Maranci | May 23, 2007 11:20 AM

Nice idea. Problem is that Bush has made it clear that he is in full confrontational-belligerence mode and all we can expect from him is opposition and toughness, complete with exceedingly regular use of the word "tough" itself. He'll keep Gonzales just to keep the 28% happy.

Posted by: Chris Fox | May 23, 2007 11:53 AM

Shannon P: Fully agreed, but these points have been widely said. They are reasons why GW isn't likely to go along with it.

Posted by: Lani | May 23, 2007 02:09 PM

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