The Portait of a Criminal Enabler: Alberto Gonzales

Rough Justice - The Case Against Alberto Gonzales
Part I Part II Part III Part IV

Part I: Alberto Gonzales: A Willing Accessory at Justice

Attorney General Alberto R. Gonzales is the 80th attorney general of the United States and if recent events in the law and at the Justice Department are any indication, he is rapidly staking a claim to being among the worst. To test that claim and evaluate the man who is not just nominally called the "nation's top lawyer," we must answer three questions. To what extent did Gonzales' public record before taking office give us clues about what sort of Attorney General he has turned out to be? Has he so far been up to the task as it is ideally defined? And, finally, does he deserve to continue to serve in office?

This series will look at each question in depth. But, here, briefly, are the answers. First, Gonzales' cronyistic record in both Texas and as White House counsel did indeed presage many of the serious problems Gonzales now faces at the Justice Department. He has run true to form over the past two years and has diverted hardly at all from his long history of dogged obedience to the President, which often has come at the cost of institutional independence and adherence to the rule of law. Second, Gonzales is seen by many legal historians and scholars as an abysmal failure--not quite as bad as the worst attorneys general in our history, but much closer to the bottom than to the top. And, third, given the burgeoning scandal over the dismissal of federal prosecutors at the request of the White House, there appear to be few legitimate reasons why he deserves to stay in office. What follows, then, is really a bill of particulars drawn up by some of the nation's leading lawyers and historians, that attempts to support these conclusions.

But first, a step back. To understand better the case for or against Gonzales, to place it more squarely into context, it is important to understand that the attorney general in our federal system has to straddle a line between law and politics, between being the people's attorney and his boss' loyal cabinet member. It is not an easy thing to do and few attorneys general have done it even remotely well. The dichotomy in many ways mirrors the one that everyday attorneys face with their own clients-- am I an advocate who must facilitate what my client already has decided to do? Or am I a counselor who may tell my client on occasion that what he or she wants to do is illegal or just plain wrong?

History has given us very little guidance about where this line is to be drawn. Actually, the history of the Office of the Attorney General is a rather uninspiring one. The position was included in the Judiciary Act of 1789, the Book of Genesis when it comes to the federal judicial system, but it took nearly a century for the attorney general to have any sort of a meaningful "justice department" to run. Originally, for a few decades anyway, the attorney general was not even part of the President's formal cabinet and now, of course, some of the duties of the original attorney general reside in the White House counsel's office. Gonzales, remember, came from that office to his current post when John Ashcroft read the writing on the wall and resigned as attorney general at the start of President George W. Bush's second term in office.

By far the strongest and most persistent criticism of Gonzales, and the one focused upon in this series, is his perceived unwillingness or inability at times to play the role of counselor rather than facilitator--to act independently of the man to whom he owes his job and his public career. Gonzales has been charged, over and over again and both before and during his current tenure, as being President's Bush's in-house and in-court "yes" man, a lawyer whose main role has been to try to justify legally, at least on its face, what his boss already has decided for political or moral reasons to do anyway. This indeed, sometimes anyway, is one of the roles of attorney general. But it is wholly at odds with the other role, that of hands-off protector of the Constitution against both internal and external threats to its viability.

During Gonzales' confirmation hearing in January 2005, Sen. Patrick Leahy (D. Vt.), then ranking member of the Senate Judiciary Committee, said "the job of attorney general is not about crafting rationalizations for ill-conceived ideas; it's a much more vital role than that. Attorney general is about being a forceful, independent -- independent -- voice in our continuing quest for justice in defense of the constitutional rights of every single American." Leahy back then expressed his concern that Gonzales did not possess the temperament, training, will, or motive to act independently from the man, President Bush, to whom Gonzales has served in one way or another ever since they both came to public service. Many others since have echoed those sentiments.

It is not hard to see why these accusations seem to have stuck with Gonazales. In July 2005, after he became attorney general, after he swore to uphold the Constitution, he was asked during an interview by folks at the Academy of Achievement to list his role models. His answer? "The three biggest influences of my life, in terms of maturing me as a person, were my mom, my dad and our President, who's given me some wonderful opportunities. I've learned a lot from him in the various roles that I've seen him in, as a father, and as a governor, and as a president."

It is a nice sentiment. But not the sort of quote likely to foster confidence among others that our nation's top lawyer would be willing to stake out when necessary and appropriate legal positions that are contrary to those of his self-proclaimed hero. And, as we'll see, when the stakes indeed have been high over the past few years, and even when Gonzales worked for then-Governor Bush in Texas, Gonzales has obediently toed his boss's line. So much so, in fact, that even before the burgeoning scandal over federal prosecutors, Gonzales' work had raised the specter of the dreaded "C" word within an administration that has come to be known for it--Cronyism. Heckuva job, Alberto!

Professor Stanley Katz, a legal historian at Princeton University, says there is no agreed upon "ideal" attorney general. And he told me Tuesday morning that the job has changed tremendous over time. But he believes that Gonzales "falls short of any ideal I can think of" and says that Gonzales has inappropriately balanced his "loyalties to the President" with his "responsibilities as a lawyer." Gonzales, says Katz, "doesn't seem to see past the relationship with his boss" and has been "a willing accessory" to some of what Katz sees as the "worst excesses" of the administration's policies.

Like Gonzales, some attorneys general have merely been pliant servants of the Presidents for whom they have worked. Others have been independent voices who have butted heads over weighty legal issues with the very people who put them into office. Invariably, posterity has well received lawyers in the latter group. For example, perhaps the most famous attorney general in American history achieved that standing from historians and legal scholars merely because he stood up to his boss. Eliot Richardson was summarily fired from the post in October 1973 when he refused to assent to the wishes of President Nixon, who wanted Richardson to fire special prosecutor Archibald Cox during the Watergate scandal. Edward H. Levi also gets good marks from historians for restore public confidence in the rule of law when he was President Gerald R. Ford's attorney general.

"About the only honest and shall we say effective attorney general of the past generation or two was Ed Levi," says Stanley Kutler, a legal historian at the University of Wisconsin at Madison. "He was politically obligated to no one and was not politically or personally connected to the president. The president (Ford) for his part was quite content to let the attorney general run his own department. It was not run out of the White House--and the news this morning about the federal prosecutors typifies the problem" of an attorney general beholden to a president. In Kutler's view, too many presidents have picked too many attorneys general in the ultimate hope that the top lawyer in the Justice Department would ultimately protect the White House.

A more recent and obvious comparison and contrast to Gonzales is Janet Reno and her tenure as President Bill Clinton's attorney general. Pilloried for her role in the disaster at Waco, Texas in April 1993, Reno famously vexed her boss (so much so that he reportedly stopped talking to her) by appointing a special prosecutor to look into the Whitewater affair, a move that begat Kenneth Starr and Paula Jones and Monica Lewinsky and ultimately the impeachment of Clinton in the winter of 1999. Reno was not necessarily a politically-savvy attorney general, had no real constituency in Washington, and did not earn rave reviews from legal scholars. But she was from time to time willing to act independently in a way that put her in direct conflict with the man who had given her the job. No similar examples stand out for Gonzales.

Almost all attorneys general have struggled to adequately describe and then balance their competing political and legal goals and responsibilities. When he was installed in office in February 2005, Gonzales himself said: "There has been much discussion during my confirmation about the appropriate role of the Attorney General; certainly an important and legitimate debate about the individual viewed by many as the primary guardian of our rights and protector of our freedoms. The Attorney General is a member of the President's cabinet, a part of his team. But the Attorney General represents also the American people, and his first allegiance must always be to the Constitution of the United States."

Eric Holder, Jr., a deputy attorney general during the Clinton administration, also used the "team" analogy when he responded to me via email on this topic. "An Attorney General has to be a part of a team and yet understand," Holder wrote, "that unlike other cabinet members, he/she has a unique responsibility. As chief law enforcement officer, the Attorney General has a responsibility to be more detached, more neutral than other Cabinet officers." John Dean, President Richard Nixon's legendary White House counsel, took the reasoning one step further in an email to me Monday. He wrote: "What is most important about the Department of Justice is to not politicize it, because it really must make decisions that effect the public interest, and the criminal justice system, and if Department is a highly political entity, it will lose trust, it will lose the best and brightest attorneys who want to work there, and then we all lose."

This, then, is the fluid and dichotomous nature of the job of attorney general. It is within the context of this history that Alberto Gonzales' record at the Justice Department should be judged.

Original article posted here.