NO MATTER how many members of Congress lose confidence in Atty. Gen. Alberto R. Gonzales, President Bush is unlikely to let him go. If Gonzales resigns, the vacancy must be filled by a new presidential nominee, and the last thing the White House wants is a confirmation hearing.
Already, the Senate is outlining conditions for confirming a Gonzales successor. Sen. Patrick J. Leahy (D-Vt.), chairman of the Judiciary Committee, has said that his panel would not hold confirmation hearings unless Karl Rove and other White House aides testify about the firing of U.S. attorneys to clarify whether "the White House has interfered with prosecution."
All this is reminiscent of the Watergate scandal. In 1973, as the coverup was unraveling, the Senate imposed a condition on the confirmation of President Nixon's nominee for attorney general, Elliot Richardson. Richardson's predecessor had resigned because of Watergate troubles. Concerned that the Justice Department would not get at the truth, the Senate insisted that Richardson would name a special prosecutor to investigate Watergate. Richardson duly appointed Archibald Cox.
The rest is history. Cox's aggressive investigations led to the prosecution of top administration officials and the naming of Nixon as an unindicted co-conspirator in the coverup. When Cox sought White House tapes of Nixon's conversations with his staff, the president had him fired, unleashing a firestorm of protests. Americans demanded that a previously reluctant Congress start impeachment proceedings against Nixon. Congress complied; the House Judiciary Committee, of which I was a member, voted for impeachment, and Nixon resigned.
Aspects of this history could easily repeat themselves. The Senate could demand, as it did in 1973, that a new attorney general appoint a special prosecutor, and this could again have dire consequences for the White House.
A new special prosecutor would have many questions to investigate.
For starters, were any of the firings of U.S. attorneys federal crimes -- such as obstruction of justice, designed to stymie investigations or to retaliate for prosecutions of Republicans? If so, who is responsible and how high up does that responsibility go? Did Deputy Atty. Gen. Paul J. McNulty, who gave inaccurate testimony to Congress about the firings, commit any crime in doing so? Were those who briefed him for that testimony complicit?
And what happened to the missing e-mail messages from Rove and others? Did these apparent violations of the Presidential Records Act -- failure to keep copies of the exchanges -- constitute federal crimes?
So there is ample work for a special prosecutor. The Senate could call for appointing one without waiting for Gonzales to resign. But in that case, Gonzales or McNulty would be making the appointment, and the integrity of the choice would be highly questionable.
That leaves Senate confirmation hearings of a new attorney general nominee as the main leverage for Congress to secure an independent criminal investigation of the U.S. attorney firings.
Moreover, the Senate might use such hearings to do more than secure testimony from White House aides about the firings, as Leahy indicated. It also might use the opportunity to probe the Justice Department's role in mistreatment of detainees, four years of flouting the Foreign Intelligence Surveillance Act and other serious matters.
Rather than face such scrutiny, the White House may prefer keeping a drastically weakened Gonzales in place. But doing so exacts a high price for the Justice Department and the nation. It damages department morale and credibility, undermines its ability to recruit and could affect perceptions of federal prosecutors, jeopardizing important cases. By retaining Gonzales to preempt Senate action, the president has signaled that this is a price he is willing to make the nation pay.