The Sins of Alberto Gonzales, and Advice for the Next Attorney General

By MICHAEL C. DORF

Wednesday, Aug. 29, 2007

On Monday, Attorney General Gonzales announced that he will leave office next month. President Bush greeted the news with sadness, describing Gonzales as a faithful public servant whose "good name was dragged through the mud for political reasons."

The claim that Gonzales came under sustained critical scrutiny because of ordinary politics is absurd on its face. For one thing, even many Republicans in Congress repeatedly expressed skepticism about Gonzales's performance. For another, if simple politics were at work in the way the President claimed, Democrats would have been willy-nilly calling for the resignation of all Bush Administration officials. Democrats had no reason to single out Gonzales for criticism--no reason, that is, other than his performance.

In this column, I will explain what was wrong with the way Gonzales did his job as Attorney General, and offer a suggestion for his successor.

Contempt for Congress

The numerous contradictions between testimony before Congress by Gonzales and by key aides have led some observers to call for a perjury prosecution against Gonzales. Most damaging are the discrepancies in the accounts of a visit by then-White House Counsel Gonzales to the hospital bed of then-Attorney General John Ashcroft, when Ashcroft had ceded his powers to a deputy.

At the very least, the professed lapses in memory by Gonzales and his loyalists are suspicious. In one Senate hearing earlier this year, former Gonzales Chief of Staff Kyle Sampson gave the answer "I don't remember" 122 times. Gonzales himself used the phrase "I don't recall" or "I have no recollection" over seventy times in another session.

Whether or not Gonzales ultimately faces perjury charges, his repeated obfuscations in testimony before Congress make clear that he has little regard for the legislative branch. And that stands to reason, for the chief law enforcement official of an administration that professes the most robust possible version of the "unitary Executive."

An Ideologue in Bungler's Clothing: Gonzales on Habeas Corpus

More broadly, just as President Bush sometimes benefits from people, in his own memorable phrase, "misunderestimating" him--that is, assuming he's merely a genial fool rather than a shrewd ideologue--so too Gonzales may have benefited from his image as an incompetent flunky. In fact, Gonzales has been a hard-core ideologue.

The commitment to the unitary executive is just one example. Gonzales also famously derided some of the protections of the Geneva Conventions as "quaint," and most disturbingly, in testimony before the Senate Judiciary Committee in January of this year, he asserted that the Constitution does not protect a right of habeas corpus.

That last claim is arguably true in a technical sense, but only in a technical sense. The Constitution's Article I, Section 9 provides, in relevant part: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." Gonzales argued that the prohibition on suspending habeas does not guarantee that there will be any habeas corpus protection in the first place, unless Congress, in its discretion, chooses to provide it.

Republican Senator Arlen Specter aptly observed that this argument violates common sense, but to be fair, Gonzales was not the only person to advance it. In the 2001 case of INS v. St. Cyr, Justice Antonin Scalia, joined by Justice Clarence Thomas and the late Chief Justice William Rehnquist, made the same claim. They invoked the literal language of the Suspension Clause and some of the history of its adoption and subsequent interpretation to conclude that, absent rebellion or invasion, the Clause forbids Congress from temporarily suspending habeas corpus, but not from permanently abolishing it.

Thus, there is a patina of respectability surrounding the restrictive view Gonzales took of habeas corpus, although on balance his argument is a poor one: Given that Congress can always re-enact laws it has repealed, there is really no such thing as permanent legislation. But never mind that. Wasn't Gonzales unfairly ridiculed for advancing a view that had recently been endorsed by three Supreme Court Justices and many others before?

No, he was not. When Justice Scalia argued that the Suspension Clause does not forbid a "permanent" abolition of habeas corpus, the question was open. The very case in which he made the argument, however, resolved the question against his position. Scalia was, after all, in dissent. The St. Cyr majority opinion made clear that the Justices thought that the Suspension Clause does affirmatively protect some core right.

Ordinarily, Supreme Court rulings limit Congress and the Executive branch. Thus, Gonzales, as Attorney General, should have been, but apparently felt that he was not, bound by the Supreme Court majority's view in St. Cyr. Either he was unaware of the decision--itself disturbing for the Attorney General of the United States--or more likely, he believed that mere words by the Supreme Court should not bind the political branches in wartime. There is even some authority for that extreme-sounding view, but Gonzales did not invoke it, perhaps because he knew how odd it would sound for the nation's chief law enforcement authority to espouse a position so difficult to reconcile with the rule of law.

Crossing the Line Between Policy and Partisanship

No episode during Gonzales's tenure as Attorney General (and part of his tenure as White House Counsel) so clearly captures how he misunderstood his job, as the scandal surrounding the firing of United States Attorneys. Here, as in other contexts, Gonzales appears to have labored under a serious misunderstanding about the line between law and politics.

Much of the public debate regarding the U.S. Attorney firings has involved Bush/Gonzales defenders attacking arguments that well-informed critics have not made. The apologists argue--correctly but irrelevantly--that U.S. Attorneys serve at the pleasure of the President, and thus can be fired at any time. They argue--again correctly but irrelevantly--that the President and Attorney General are entitled to set the policy agenda for U.S. Attorneys.

These arguments are irrelevant because the heart of the firing scandal involves the allegation that U.S. Attorneys were fired because they refused to use the nation's law enforcement resources to target Democrats disproportionately to Republicans. It is not entirely clear whether this allegation is true, but that uncertainty itself results in part from the White House's failure to cooperate fully with the Congressional investigation.

More importantly, if the allegation is true, that would represent a gross misuse of office. It is perfectly acceptable for Republicans and Democrats to have different law enforcement priorities. As I explained in an earlier column, however, it is completely unacceptable for a Democratic administration to distort those priorities by disproportionately targeting Republicans--or vice-versa--for partisan advantage. Beyond the partial evidence already made public, the allegation that Gonzales used the Justice Department in this illicit manner is credible precisely because, at every turn, he has made loyalty to President Bush and the Republican Party his top priority.

Restoring Honor and Dignity to the Justice Department

Fears that the Justice Department has become dysfunctional under the leadership of Attorney General Gonzales are probably overblown. Much of the work of the Department proceeds just fine without direction from Washington. Dedicated FBI Agents and Assistant United States Attorneys will hunt down and prosecute terrorists, bank robbers, and major drug dealers regardless of who holds the formal title of Attorney General.

Moreover, it is hard to imagine that the core goals of the Justice Department will or should change under a new Attorney General. One can question the emphasis that Gonzales and his predecessor John Ashcroft placed on seeking the death penalty and on child pornography prosecutions, but those were legitimate policy choices for politically accountable officials to make. The core goals, as reflected in the Justice Department's Strategic Plan, are unassailable: first, preventing terrorism, and second, fighting crime. No sensible person would adopt different priorities in these times.

Nonetheless, leadership matters. Already documents have surfaced showing that plum jobs in the Bush Justice Department have gone to Republican loyalists, rather than to the most highly qualified attorneys (many of whom will happen to be Republicans). That approach has undermined the noble tradition of professionalism in the Justice Department. The next Attorney General--whoever he or she is--should, on day one, reaffirm the Department's commitment to norms of professionalism.


Michael C. Dorf is the Isidor & Seville Sulzbacher Professor of Law at Columbia University. He is the author of No Litmus Test: Law and Politics in the Twenty-First Century and he blogs at www.michaeldorf.org.

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