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In defense of Alberto Gonzales
THE DISPUTE OVER the dismissal of eight U.S. attorneys poses a fundamental question: To what degree may the president exercise authority over the direction of law enforcement?
In the aftermath of Watergate, President Carter directed Atty. Gen. Griffin Bell to prepare legislation that would make the attorney general an appointed post for a definite term, subject to removal only for cause. Carter's idea was to keep the attorney general independent of presidential direction to ensure that the Justice Department's authority would never again be abused for political purposes, as it had been during the ethically troubled Nixon presidency.
Despite Carter's noble intent, Bell refused. In a little-known memorandum to the president dated April 11, 1977, he explained why. Any law that restricted the president's power to remove the attorney general — and, by inference, to fire any U.S. attorney — would likely be found unconstitutional. The president, Bell reasoned, is held accountable for the actions of the executive branch in its entirety, including the Justice Department; he must be free to establish policy and define priorities, even in the legal arena. "Because laws are not self-executing, their enforcement obviously cannot be separated from policy considerations," Bell wrote.
Carter argued that the attorney general is different from other Cabinet officers. The job entails dual responsibilities: carrying forward White House policies like any other Cabinet official, and representing the law of the United States, whether it coincides with the president's policies or not. Bell agreed, but he found that insufficient to justify separating the attorney general and subordinate U.S. attorneys from presidential direction.
Bell anchored his reasoning on Supreme Court precedent, especially Chief Justice William Howard Taft's opinion in Myers vs. United States (1926).
Congress enacts different types of laws, the chief justice opined. Some laws require close supervision by the president, while others draw upon the expertise found within the specific agencies of government. Much law, however, generally empowers the executive, and when subordinates perform these functions, "they are exercising not their own but [the president's] discretion," the court said. "Each head of a department is and must be the president's alter ego in the matters of that department where the president is required by law to exercise authority."
The court's analysis did not deny the unique nature of the Justice Department. Indeed, Taft acknowledged that there may be duties that require evenhandedness from executive officers, "the discharge of which the president cannot in a particular case properly influence or control."
Improper influence is, of course, exactly the concern of Sens. Patrick J. Leahy (D-Vt.) and Dianne Feinstein (D-Calif.) now, when they seek to ascertain if specific prosecutions were obstructed for partisan reasons. Yet, to illustrate the subtlety of the Senate Judiciary Committee's inquiry, the court also held that a president can remove any appointee from office for a particular prosecution "on the ground that the discretion regularly entrusted to that officer by statute has not been on the whole intelligently or wisely exercised."
Belatedly, D. Kyle Sampson, Atty. Gen. Alberto R. Gonzales' former chief of staff, made the same point in his Senate testimony Thursday. The U.S. attorneys who were dismissed had been evaluated not just on their professional skills, Sampson said, but also with respect to their relations with other law enforcement and government leaders and their support for the president's priorities. Rather obviously, Sampson was seeking to anchor the dismissals squarely in the court's precedent that gives the president and the attorney general wide latitude to remove staff.
Bell's analysis is instructive. His refusal to draft Carter's desired legislation does not mean the Senate shouldn't inquire into whether the Bush White House or the Gonzales Justice Department sought to improperly influence a particular case. But it does mean that the Senate has no legitimate basis to object if it turns out the U.S. attorneys were removed because they failed to bring the cases the president or his attorney general sought to give emphasis. The first is corruption and obstruction. The second is political direction.
Bell concluded 30 years ago that blunting that presidential direction would make the attorney general "overly responsive to Congress, and this would clearly affect the separation of powers among the three branches that is established by the Constitution." The same holds true today.
Ultimately, Bell shared Carter's concern that the Justice Department not abuse its authority for political purpose. But, said Bell, the only certain check on that misuse of power "involves trust and integrity — two things no law can provide or guarantee."
When Gonzales appears before the Senate Judiciary Committee on April 17, history, precedent and the Constitution will be on his side. It remains to be seen, however, whether he can convince his Senate inquisitors that he possesses those two things no law can provide or guarantee.