Opening Argument March 2007

Choosing the Next Attorney General

Running the Justice Department is a big, big job that can be done well only by people with superior abilities and judgment.

Gonzales was plucked by then-Gov. Bush of Texas from a big law firm where he was a relatively undistinguished partner. As the governor's counsel, he sent Bush superficial memos that cleared the way for executions of more than 50 death-row inmates by dismissing their clemency petitions, while sometimes ignoring evidence of ineffective counsel, mitigating circumstances, and even possible innocence. His 20-some judicial opinions as a Bush appointee on the Texas Supreme Court were unimpressive, as have been his public performances as White House counsel and attorney general. People outside the administration who have tried to engage him in serious discourse about complex issues sometimes come away shocked by the superficiality of his knowledge and the shallowness of his analysis.

As White House counsel from 2001 through 2004, Gonzales had his fingerprints on Bush's most grandiose and insupportable claims of power in the war on terrorism. These included Bush's claim of virtually unlimited power to imprison for years, incommunicado, without real judicial review, anyone in the world whom he labeled an "enemy combatant."

Gonzales also implicitly approved the infamous August 1, 2002, Justice Department legal opinion asserting that Bush had the authority to abrogate federal criminal laws and treaty obligations and to order (if he chose) wholesale use of torture in wartime interrogations.

It was drafted by political appointees with major input from White House lawyers under Gonzales. But in his January 2005 Senate confirmation testimony, Gonzales uttered a batch of self-contradictory evasions about this legal opinion:

"I don't recall today whether or not I was in agreement with all of the analysis, but I don't have a disagreement with the conclusions then reached by the [Justice] Department.... I reject that opinion.... I am not prepared in this hearing to give you an answer [on its correctness].... [I had] discussions [with Justice during the drafting process] to make sure that we got it right, [but it] really would politicize the work of the career professionals [who played no role] at the Department of Justice" to express a view on whether the opinion did get it right. Pathetic.

The extreme Bush-Gonzales claims of power and treatment of detainees have not strengthened but rather weakened the counter-terrorism effort and the presidency: They have alienated potential allies abroad and so alarmed the Supreme Court that it has rebuffed Bush in all three big war-on-terror cases so far. A well-advised president could have won those cases.

As for the U.S. attorneys, there is a world of difference between firing such a political appointee for 1) being a Democrat; 2) failing to press the president's law enforcement agenda; 3) overstaying his or her welcome in a job that the White House wants for a political favorite; 4) prosecuting Republican lawmakers; or 5) failing to bring election-fraud prosecutions against Democrats on a timetable designed to help Republicans at the polls.

The first three are standard operating procedure. The last two—if they happened—would be unethical and arguably illegal. A minimally competent attorney general would instantly appreciate the difference. Did Gonzales? Perhaps. But the succession of misleading and contradictory statements from him and his aides—which may further weaken the presidency by fueling congressional demands for testimony by White House officials—inspire no confidence. Nor do Gonzales's comments (as reported by Newsweek) to three senators who visited his office to discuss the matter: "Why do I have to prove anything to you?" And "everyone [fired] was in the bottom tier." In fact, some had glowing performance evaluations.

When the president and the Senate choose Gonzales's successors, they need to do better. Much better.

Presented by

Stuart Taylor Jr., a contributing editor for National Journal, is teaching a course on the news media and the law at Stanford Law School.

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