Confident about no-confidence?

Today Kmiec and Litman discuss the politics and constitutional issues of a Senate no-confidence vote. Yesterday they debated the attorney general’s uncertain future, and tomorrow they will focus on the legal angles around the firing of U.S. attorneys.

More than just theater
By Harry Litman

Doug,

Today we focus our attention on the political sphere and the prospect that the Senate will pass a resolution of no confidence in Attorney General Alberto Gonzales. President Bush has dismissed the prospect as “pure political theater,” and perhaps you agree. After all, the resolution can do nothing to change the constitutional allocation of power that you emphasized yesterday, which places removal authority firmly in the president’s hands, however frustrating that might be to some senators.

The resolution could also be considered “political theater” in the related sense of mere posturing for political leverage, the political equivalent of a dramatic performance. Of course, the same can be said of the political maneuvers in defense of the attorney general, including the President’s insistence after the attorney general’s disastrous Senate testimony that “The attorney general went up and gave a very candid assessment...in a way that increased my confidence in his ability to do the job.”

But theater in this sense comes with the territory. The attorney general is in a struggle for political survival, and his stewardship of the Department of Justice has produced a political crisis for the administration. Political crises produce political theater. Both the Senate leadership and the White House are feverishly trying to position themselves to maximize political advantage (or minimize political fallout). There is nothing anti-constitutional, or even novel, about this. Again we are, as I suggested yesterday, in overlapping spheres of constitutional authority and political prerogative.

Is the theater nevertheless at all meaningful or is it rather just so much strutting and fretting on the political stage? Let me answer the question on two levels, in the process getting back to my theme of the differences in institutional roles among the White House, the Senate, and the Department of Justice. On the level of political fortunes (where I am happy not to be an expert), I think it is somewhat meaningful, and a clever (and apparently unprecedented) stratagem on the part of the Senate Democrats. Its chief potency lies in forcing Senate Republicans to cast their lots, either deserting the Administration in an hour of need or putting their political accountability behind a greatly weakened attorney general who may well not survive anyway. (The Republican headcount is a sort of futures market on whether the attorney general can weather the storm.) It is not a choice they relish, and it is likely that some Republicans are imploring the White House to avert the vote by pulling the plug on the attorney general. But of course Gonzales has previously seemed to be at the verge of a Do Not Resuscitate order and remains in office, so who’s to say if the resolution will be the coup de grâce?

But I’d like to focus on what the resolution signifies off the political stage, for the Department of Justice’s real-world mission. Here the question is this: Should we in fact care if the Congress, or the public, has no confidence in the attorney general? The answer is yes, we should care greatly. Attorneys general of both parties typically have the confidence of Congress and the public, because they are perceived as carrying out their work in a nonpartisan and apolitical fashion. That public confidence in the sound administration of justice is the Department’s most important, and fragile, asset.

That sounds pious—and in truth, like many people who served in the Department (probably you included), I feel the point in somewhat Capraesque terms—but it is a hugely practical point as well. The former deputy attorney general, James Comey—who has, I expect reluctantly, been effectively cast as the Anti-Gonzales in this drama, the picture of how a Senior Department Official should approach the job —put it very well in addressing the charge (which yesterday’s testimony proved accurate) that DOJ hiring decisions were driven in part by partisan politics. “If that was going on, that strikes at the core of what the Department of Justice is... It deprives the department of its lifeblood, which is the ability to stand up and have juries of all stripes believe what you say and have sheriffs and judges and jailers—the people we deal with—trust the Department of Justice.”

You wrote yesterday about the professionalism and conscientiousness of the men and women who serve under the attorney general. They are professional and conscientious. They are also the ones who have to persuade people in individual cases that the department enforces the law without fear or favor. By letting partisan politics infect the department’s core function (not only in the firings of U.S. attorneys), and in his botched responses to the crisis, Gonzales has handed a club to anyone who wants to argue otherwise. It falls in large part to the career professionals to clean up the mess that Gonzales has made. The longer the scandal drags on, the longer and harder the eventual cleanup will be, and the more they will resent him for it. And that’s not just theater.

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.

A no confidence vote in the separation of powers?
By Douglas W. Kmiec

Harry,

You and I both wish this particular political theater were closed. There is a tenable case to be made, and you have largely and eloquently made it, that whether or not Attorney General Gonzales has engaged in wrongdoing (and I remain strongly of the view that he has not), it would be more noble or for the greater good of Justice and the rule of law if he would simply step aside.

Surely, it is the wish of every civil servant and presidential appointee to have the Department of Justice revered for integrity, competence and the evenhanded administration of law without fear or favor. My daughter, who is just a few years shy of Monica Goodling, graduated from law school last Friday. As Monica spoke, I saw in her the same idealism and nobility of desire to pursue the common good that I have witnessed in my own daughter. So I could well understand Alberto Gonzales, who is a good and decent man, following the path of least resistance and subordinating his personal offer of service to the unhappy, practical reality that his offer has been spurned.

Yet, the attorney’s oath my daughter may soon take gives me pause. That oath, as you know, provides that an attorney “will not wittingly or willingly maintain a false proceeding.” Is it really a victory for Justice and the Constitution if a congressional inquiry persists in blackening the names of everyone it touches, even in the absence of credible proof of wrongdoing? Worse, is it a victory for the rule of law where what is alleged to be a wrong is, in fact, a proper constitutional exercise of authority? Isn’t a no confidence vote under these circumstances seeking to, contrary to the attorney’s oath, “mislead by artifice”?

Yes, Monica Goodling testified she “crossed the line” with respect to making political inquiry of applicants for civil service or so-called “career” jobs. Presumably, this admission was part of the reason she sought use immunity. Yet, if “artifice” were not the purpose of continuing the congressional inquiry, that admission should have—once again—put into stark relief that a presidential appointment for U.S. attorney is different. It is, by design, a political appointment.

This is what national elections are all about. The policies of an elected president are given life by his appointees. A U.S. attorney cannot simply ignore the prosecutorial policy emphasis of his or her president. It may distress Democrats that Republicans think voter fraud is a worse problem than voter exclusion (if that is indeed what Republicans think), but if those are the priorities of the elected president, the Department of Justice, like every other executive agency, ought to be reasonably responsive to that policy emphasis. As President Carter stated at the swearing in of Attorney General Griffin Bell: “To the maximum degree possible, the Attorney General should personify what the President of the United States is—attitudes, philosophies, commitments...”

Please understand, I do not begrudge the Senate or the House its legitimate oversight, especially when there is an unusual removal of U.S. attorneys at one time. Even though, as a matter of constitutional theory, appointment and removal are two sides of the same accountability coin, removal for political reasons is different. It is fundamentally so because of the vast discretion U.S. attorneys have to enforce or not enforce existing law. As the late Supreme Court Justice Robert Jackson, himself attorney general to Franklin Roosevelt, observed, there are too few resources to enforce every law. The prosecutor must choose, and if he does so, on a political basis, there is a profound injury to the rule of law, and especially the concept of equal justice under law. You are right to say that prosecutorial decisions “must be based on the facts and the law and nothing more.” This is indeed “the heart of the mission of the Department of Justice.” Yet, the facts of the present matter are now well known, and since they reveal nothing by the attorney general other than the exercise of his assigned authority, this sacred principle has not been transgressed. The matter should end not in no confidence or resignation, but in the return to work. To illustrate my point, let me take up the case of David Iglesias which you have highlighted.

Iglesias has testified that Sen. Pete Domenici (R-New Mexico) called him to inquire whether indictments in an Albuquerque corruption case would be issued before the November 2006 elections. According to Iglesias, Domenici “asked, ‘Are those going to be filed before November?’ I said I didn’t think so. He said, ‘I’m very sorry to hear that.’ And then the line went dead.” The senator has confirmed this inquiry.

You say it comes “as no surprise (if a disappointment all the same) that prominent politicians would be making such inquiries.” Perhaps the reason it “comes as no surprise” is because the inquiry could be little more than expected legislative—executive interaction over the proper enforcement or implementation of law. Legislative oversight occurs in many forms: from open hearings to telephone calls, and follow-on correspondence responding to an inquiry from a constituent. There is no reason to believe that such inquiry is the urging “of a prominent politician...to bring criminal cases to influence the outcome of an impending, hard-fought election.” Indeed it is entirely possible that Senator Domenici’s inquiry (and implied charge that Iglesias was dragging his feet) could have been correct. If so, Iglesias’ slow progress might have been justifiable reason for sanction. You admit as much.

That said, as a general matter, U.S. attorneys are instructed not to confirm or deny investigations or decisions about investigations that have not been made public. It is for this reason that the Department of Justice has for many years sought to channel communication between Congress and the Department of Justice through a single Office of Legislative Affairs. Yet, it is hardly news in Washington that senators and congresspersons do not always limit their communication on behalf of constituents in this way. (Take for example Senator Feinstein’s well-known letters of complaint to the attorney general about the immigration enforcement practices of former U.S. attorney Carol Lam). This is why U.S. attorneys are instructed to notify main justice when an irregular contact occurs—a nicety Iglesias chose to ignore.

This is not to suggest that the Domenici contact, though irregular by the Department of Justice’s desired procedure, was ethically improper. It is hard to see how a conversation as succinct as the one reported could constitute a violation of legislative ethics, but I leave that to the legislative branch to assess fully and fairly. But whether or not the House or Senate ethics rules—which do, in some defined circumstances, limit contact by a legislative member with the executive branch over a matter under formal consideration by the executive branch—was scrupulously observed, it does not form a basis for the removal of the attorney general.

In the end, the fault ascribed to the attorney general is premised upon the speculation that in the case of Iglesias and the others removed, the attorney general did not sufficiently, or personally, evaluate the merits of the legislative or other complaints that had been raised against a handful of sitting U.S. attorneys. It is not clear that the public record establishes this lack of due diligence, but with due respect, it is constitutionally off-point. The removal of U.S. attorneys is not premised upon a showing of “cause,” or legislative second-guessing of what cause various executive officials may have individually discerned. Gonzales has conceded the mistake of over-reliance upon Kyle Sampson, his young chief of staff. Meanwhile, both Monica Goodling and Sampson have revealed their own extensive consultations and interaction with Paul McNulty, the deputy attorney general—a very well regarded and experienced former U.S. attorney. While witnesses are in some disagreement about the fact, it appears obvious that McNulty was very much involved in the removal decision-making. If so, even the claimed management shortcoming is now open to question. Given his stature and experience, a delegation of the power of review to the deputy attorney general to evaluate the performance of U.S. attorneys would be unassailable.

You advocate a no-confidence vote suggesting that the Department of Justice is in “the worst crisis for at least a generation” and that it will not “abate as long as the attorney general remains in office.” Sadly, baseless charges have taken a toll on the Department and its ability to function. But a no-confidence vote followed by resignation or removal is not the remedy if there is no evidence of wrongdoing or corruption of any type—and despite hours of legislative and journalistic time, none has been forthcoming. Except for management failings that are easily correctable or perhaps less than was first thought, Gonzales has merely vindicated the authority of the President and that vested in the office of the attorney general. Does it really bolster the morale of the department to have its leadership removed or bullied into resigning without just cause?

Unifying the power to enforce with the power to legislate is two thirds of the way toward the tyranny that James Madison advised us to avoid with the separation of powers.

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.