Should Gonzales go?

Today Kmiec and Litman discuss the attorney general’s uncertain future. Tomorrow and Friday they’ll debate the Senate no-confidence vote and the legal angles around the firing of U.S. attorneys.

Don’t damage the constitutional system
By Douglas W. Kmiec

There is no basis to remove the attorney general so long as no evidence has been brought forth—and none has— that any U.S. attorney was asked to resign for partisan or corrupt purpose. The president of the United States has the constitutional authority to appoint and remove U.S. attorneys. This is not an arbitrary but a carefully articulated and reserved power to the President, that has been repeatedly reaffirmed by the U.S. Supreme Court and that ensures the accountability and effectiveness of subordinate executive officers.

With a purely executive agency like that of the Department of Justice, a decision to remove requires no more than, as the experience of FDR and multiple presidents before and after him illustrates, that the president and subordinate merely not see “eye to eye.” As President Grant told the Congress following the Civil War: “it could not have been the intention of the framers of the Constitution, that [the Senate] have the power to retain in office persons placed there by federal appointment against the will of the president.” The Constitution does not permit Sen. Charles Schumer (D-New York) or any other member of the Senate to insist directly or indirectly that President Bush continue in position any particular U.S. attorney.

Because that is so, it is not surprising that Schumer has not produced any constitutional basis for examining or second-guessing the attorney general’s decision to remove a handful of the 93 existing U.S. attorneys. In this respect, it is Orwellian to suggest that the fulfillment and defense of a constitutional duty could be the basis of removal of the attorney general. To preclude the President from exercising his unfettered removal authority would be “inconsistent with a faithful and efficient administration of the government,” wrote Grant. For the President to remove an attorney general who has so steadfastly and correctly defended this essential aspect of the separation of powers would be to do great damage to the constitutional system.

Alberto Gonzales is the second of eight children of migrant farm workers, Pablo and Maria Gonzales. A former justice of the Texas Supreme Court and Texas secretary of state, Gonzales has a calm and deliberative manner that listens more than it imposes. I know the man to be a person of integrity. I also know him to be a capable man, even as, in making the transition from White House counsel to attorney general, he unadvisedly chose to delegate the significant matter of personnel review (that of course implements the presidential authority of supervision and removal described above) to young assistants who in some respects were overly eager in the task, and in other ways, were overly casual in documenting the benefit of the removals for the President.

Because of this over-delegation, in my judgment, Gonzales under-appreciated the problematic nature of removing selected U.S. attorneys and was overly trusting of the removal recommendations made to him. Gonzales has conceded in public testimony that this over-delegation was a mistake. It was. The U.S. attorneys removed were conscientious professionals, who may or may not have always fully understood or fully implemented the prosecutorial policy emphasis of the administration; but to a person, they served the United States and deserved better than a pink slip signed by a junior counsel. They certainly deserved not to have their particular shortcomings broadcast to the world, whether those had been noticed by a Democratic or Republican member of Congress (and there is in the public record some not unimportant criticism from both political parties of the few U.S. Attorneys ultimately asked to resign).

But these are management mistakes that do not overshadow the conscientious manner in which the general work of the Department of Justice has been performed, or by which it should be measured.

In this, I am not overlooking the recent testimony of former Deputy Attorney General James Comey. Comey, too, is a man of great ability who served the Department of Justice well. Apparently—and this is hardly unusual in the law—there was disagreement between then-White House Counsel Gonzales and Mr. Comey over the legality of a program of great salience to meeting the ongoing terrorist threat. Apparently, Mr. Comey had refused (the program is classified so we cannot know for sure and Mr. Comey was careful not to be too explicit) to recertify the terrorist surveillance program.

To some legal scholars, this program is a vindication of the President’s constitutional authority to undertake military intelligence in a time of war as every other wartime president has done; to other scholars, the program disregards statutory limitations that were created to prevent spying on U.S. citizens engaged in protected speech activity during the Nixon administration. At one point, Mr. Comey was acting as attorney general during a brief period when John Ashcroft was hospitalized. Mr. Gonzales was dispatched to Mr. Ashcroft’s hospital bed to see if it was possible to confirm that he concurred with Mr. Comey’s decision.

It is frankly not clear whether Mr. Ashcroft concurred or not, though it is reasonable to surmise that the President was convinced that the surveillance activity could not be interrupted without doing harm to the nation. At this very time, there likely was an uptick in monitored terrorist activity which would have been noticeable to national security officials, since tragically, within those very same hours, there was a massive loss of life at the hands of al Qaeda at a Madrid train station.

This is a difficult time for the nation and its legal system. Key aspects of the rule of law are necessarily challenged by an unconventional, international adversary that has successfully attacked us and others in the Western world, and by word and deed, has vowed to repeat these attacks. Chief Justice Rehnquist opined that in a conventional war, “the law goes silent,” since the obligation to use force to defend the nation necessarily subordinates some of the highly formal legal considerations that are expected in a time of peace. We confront an enemy that close to six years after the 9/11 attack is not well understood. It is an enemy, however, that consistently demonstrates a willingness to target civilian populations or domestic locations (see the Department of Justice’s indictment earlier this month of six men with an al Qaeda-inspired plan for a slaughter of the military soldiers housed at Fort Dix, New Jersey).

Providing for the common defense requires that the leadership of the Department of Justice not be distracted by base politics. The political oversight by Congress of the executive branch can be salutary if it is truly designed to advance the mission of federal agencies, and not merely to displace executive judgment or score partisan advantage. Much to its credit, the oversight of Congress did identify a management shortcoming in the Gonzales Justice Department, but to make this the basis of removal would be to grossly overstate its importance and then disregard the remaining work of the attorney general and the men and women who serve with him—work that is without question important to the rule of law and the nation we love that sustains it.

Douglas W. Kmiec is the Caruso Family chair and professor of constitutional law at Pepperdine University. He is a former U.S. assistant attorney general and the head of the Office of Legal Counsel.

Just because he can, that doesn’t mean he should ...
By Harry Litman

Doug,

You write, as if it settles the matter, that the president has the constitutional authority to appoint and remove U.S. attorneys. Who could doubt that? As you say, the power is articulated in the Constitution and has been repeatedly reaffirmed by the U.S. Supreme Court. But isn’t this the beginning, rather than the end, of the question on the table? The focus of the controversy is not whether there was authority to remove the U.S. attorneys, but why, and by whom, the president’s acknowledged authority was exercised.

I think you implicitly concede this point in arguing that there is no basis to remove the attorney general in the absence of evidence that any U.S. attorney was asked to resign for a partisan or corrupt purpose. As a matter of raw legal authority under the Appointments Clause, I take it that the president, acting through the attorney general, could require a resignation for at least a partisan purpose (and certainly, as you say, for as amorphous a reason as not seeing eye-to-eye); but doing so could properly be regarded as scandalous and engender a political firestorm, which is what we have now.

So let’s take up the question on your terms, which is whether the critics have brought forth any evidence “that any U.S. attorney was asked to resign for partisan or corrupt purpose.” First, I found it interesting that the standard you proffer appears to be slightly stronger than the one that the attorney general himself has advanced. Gonzales suggested in his testimony that the only improper reason for firing the U.S. attorneys would have been to “impede or speed along particular criminal investigations for illegitimate reasons.” I’m curious whether you would agree that this captures the universe of improper reasons.

In any event, it seems to me you are far too quick to acquit the attorney general even on your own terms. I think some of the firings were probably more defensible than critics have contended, and one of the by-products of the controversy (and the hamhanded way that the attorney general and others have tried to explain it) is that it puts clouds of suspicion over conduct that might have been benign. (This appears to have happened in the case of Steve Biskupic in the Eastern District of Wisconsin, who has had to defend himself against probably unfair charges of bringing a politically motivated prosecution to curry favor with the administration.) But I’d be interested in your take on the dismissal of David Iglesias in New Mexico. It’s not the only dismissal that is assailable, but I want to focus on it today because it poses a direct challenge to your position as you have framed it, and because it leads to a broader and crucial point, which I will return to tomorrow, about the differences in institutional roles between the White House and the Department of Justice

There is abundant evidence that Iglesias was removed at the prodding of important Republicans in New Mexico who had unsuccessfully pressured him to indict a political corruption case against a Democratic state senator (among others) in advance of the November election. (The Republican political actors have denied the charges, but I think it’s clear that the weight of the evidence is against them.) A hugely telling moment in the attorney general’s Senate testimony was his response to the question of when Iglesais had lost his—i.e. the attorney general’s—confidence: “Mr. Iglesias lost the confidence of Senator Domenici, as I recall, in the fall of 2005.” Now it’s no great surprise (if a disappointment all the same) that prominent politicians would be urging federal prosecutors to bring criminal cases to influence the outcome of an impending, hard-fought election. But it’s stunning to think that the Department of Justice would adopt those partisan reasons as its own, and allow them to dictate the firing of a United States attorney. (And it’s manifest from the documents that the Department and the White House were perfectly aware of the nature of Sen. Domenici’s dissatisfaction.) It also seems to me plainly to satisfy your standard of a resignation requested for partisan purpose.

Let’s look at this episode a little more closely. What if Sen. Domenici’s charge that Iglesias was declining to indict a prosecution-worthy case had been correct? What if Iglesias had been unjustifiably sitting on the case or, worse, was smothering it for political reasons? That would be a serious dereliction that would justify sanction and possibly dismissal. On the other hand, if the charge was not well taken—if the evidence did not warrant prosecution—then it was the highest duty of Iglesias and the Department not to indict, and a terrible error to make the decision not to indict the basis for dismissal. And what determines who was right and who was wrong? The facts and the law, and nothing more; and now we are at the heart of the mission of the Department of Justice and the problem in this case. As far as the record shows, neither the Gonzales nor anyone involved in the process ever even attempted to evaluate whether Iglesias’s decision was right on the merits; they simply credited the charge that, as White House liaison (and today’s witness) Monica Goodling wrote in her crisis-management notes, “Domenici says he doesn’t move cases,” and on that basis handed him over.

This brings me to the other broad problem with the firings: the removal power, beside being exercised for the wrong reasons, was placed in the wrong hands. Here we appear to agree that there was a bad lapse of judgment: As you put it, Gonzales “unadvisedly chose to delegate the significant matter of personnel review to young assistants who in some respects were overly eager in the task.” I’ll just add a couple points to amplify our essential concurrence. As you know, the attorney general initially wrote, using a phrase that I expect he now much regrets, that the episode was “an overblown personnel matter.” But the hiring and firing of U.S. attorneys is not simply, or even principally, a “personnel matter.” They are the chief federal law enforcement officers in their districts and as this episode illustrates, their appointments and removals—particularly en masse—constitute important policy decisions for the department. (I note the late-breaking news that Goodling has today testified that partisan political considerations were improperly taken into account in the hiring of career department employees, which is in some ways more unsettling, if of less immediate consequence.)

Second, there is a difference between delegation of power to, say, the deputy attorney general or other senior department officials with the experience and stature to evaluate the performance of U.S. attorneys according to the legitimate and traditional criteria, and what happened here, which is the near-wholesale delegation of power to young political operatives outside the normal chain of command. I can tell you that among former United States attorneys (both Republican and Democratic—in fact, more ardently among the Republicans I know of) no feature of the episode elicits greater shock and even disgust than the central role of junior staffers whose authority was out of all proportion to their institutional knowledge and stature.

You close with a paean to the rule of law, and I think this is a good place to take up the discussion tomorrow. Let me try to frame it with a point that I think is not subject to serious question, which is that the U.S. attorney firings and related episodes (such as the recent testimony of the former deputy attorney general that you discuss) have taken a terrible toll on the Department of Justice. Main Justice is stuck in a sort of lockdown; morale has plummeted, even now in individual U.S. attorney’s offices; and the Department’s reputation for integrity and credibility—its most important asset—has been eroded. This is the worst crisis for the Department of Justice in at least a generation, and it is highly unlikely to abate as long as Attorney General Gonzales remains in office. This institutional damage is not uppermost in the calculations of the White House, and perhaps that is to be expected—but how, if at all, do you think it should figure in to the calculations of whether Gonzales should resign? Or is the attorney general’s duty in your view confined to considering the political interests of the president at whose pleasure he serves?

Harry Litman is a former United States attorney and deputy assistant attorney general. He currently practices law and teaches at Rutgers University School of Law and Princeton University.