Op-Ed

Alberto Gonzales Digs Himself a Deeper Hole

Benjamin Wittes

I want to ask how the U.S. attorney termination list came to be,” House Judiciary Committee Chairman John Conyers said to Attorney General Alberto Gonzales at the outset of Thursday’s oversight hearing. “Who suggested putting most of these U.S. attorneys on the list and why?”

It’s a perfectly reasonable question—one you would think that Gonzales, after months of being beaten about the face and neck with this scandal, would be prepared to answer. But Gonzales couldn’t—or wouldn’t—answer it. He bobbed and weaved. He took responsibility for the process. He told the committee that he had “expected” his aide, D. Kyle Sampson, to consult with the department’s senior leadership. He said he didn’t oversee the process closely and, since the scandal broke, hasn’t inquired about the specifics from the subordinates who compiled the recommendations because he didn’t want to compromise the integrity of pending investigations into the matter. He said he “understood” the list “to be the consensus recommendation of the senior leadership of the department.” Yet, when it came down to naming names, he couldn’t tell Conyers who exactly was responsible for the U.S. attorneys’ ending up on that list.

And so began another embarrassing appearance by this hopelessly compromised man, who refuses to resign and is apparently willing to mire the entire Justice Department in scandal for the duration of the Bush administration in order to remain at its helm. Over the course of the day, Gonzales displayed his now notorious powers of memory (or lack thereof). Facts were not facts but merely his “recollection.” Instead of denying things, he said he had no “specific recollection” of them happening. He couldn’t even state flatly that improper partisan considerations had played no role in the firings. “I know that’s not the reason why I accepted the recommendations,” he said in response to one question. “And I’m not aware, based upon my review of the documents, based upon the testimony that I have seen … that people were motivated and coming forward with recommendations for improper, for partisan political reasons.” Somehow, he seems to expect that people will find this reassuring.

Gonzales’s appearance was particularly dispiriting—and non-credible—because it followed only a week after the country received a lesson in what testimony by the attorney general should look like. This testimony came, unfortunately, from a man who is not the attorney general and who never will be under President Bush, but who served as deputy attorney general earlier in the administration. James Comey, to be fair to Gonzales, had an easier job before the committee than did his former boss; nobody’s trying to get his scalp or trip him up, after all. But even taking that into account, the difference between the two men’s appearances was dramatic. Comey answered questions straight. He didn’t hedge his answers with references to his memory. He didn’t slough off accountability onto underlings—while simultaneously declaring that he takes responsibility for this fiasco. And, perhaps most importantly, he didn’t talk as though everything that lies within the president’s raw power is proper to do.

Comey did not accuse anyone of anything. He didn’t need to. But an indictment drips off of every word of praise he gave the fired attorneys, whom he supervised while at the department. One of them, he conceded, had management problems, and Comey had mentioned him as a weak performer when asked about possible U.S. attorney replacements. The others he described with often-considerable enthusiasm; while he had spoken with one of them about her low number of gun prosecutions, none of them was on his list of weak performers. Comey conceded the possibility that what the department brass has termed “performance-related” issues may have arisen with these people after his departure in 2005. But his evident regard for the dismissed U.S. attorneys overwhelms the concession—as does the e-mail he wrote to one of them: “Watching [the flap] causes me great pain for the [U.S. attorneys], whom I respect, and the department which I love. Regardless, I will not sit by and watch good people smeared.” Between the praise he bestows on his former colleagues and Gonzales’s total inability to answer Conyers’s question about how the department generated the termination list yawns a huge credibility gap.

Every administration gets accused of politicizing the Justice Department. Ever since Watergate, the allegation has become part of the opposition trope. The allegations nearly always lack merit. For example, Janet Reno and William Barr—the attorneys general in the Clinton and George H. W. Bush administrations, respectively—both faced loud charges of politicizing the department for, rightly in my view, refusing to appoint unnecessary independent prosecutors to investigate scandals that did not merit them. Political appointees sometimes disagree with career officials and overrule them; that makes career officials upset and stokes allegations on Capitol Hill of politicization. Yet it may involve no impropriety at all. In general, it’s a good rule of thumb to disbelieve reflexively such allegations about either party’s stewardship of the department.

Yet this episode is testing my rule. Something, after all, must explain how this particular list came to be. New facts, many of them troubling, keep emerging. And while differences over policy explain some of the firings, Comey’s testimony dramatically suggests that the inadequacies of these individuals as managers or crime fighters or their insufficient commitment to administration policy initiatives isn’t a sufficient explanation for all. The administration’s—and many Republicans’—insistence that U.S. attorneys serve at the pleasure of the president and can be dismissed at any time is true but doesn’t cut it. Nobody doubts, after all, that the president has the power to fire U.S. attorneys. But not everything that’s lawful is good or proper. And it is not good for prosecutors to be evaluated for whether or not they are “loyal Bushies” while the White House and members of Congress lean on the department for more attention to voter fraud cases in the immediate proximity of an election. Nor is it good for the attorney general to be able to offer no coherent explanation for how people lavishly praised by his former deputy—a man of far greater reputation than the attorney general himself—ended up on a list of people to lose their jobs.

This failure to appreciate the difference between what is lawful and what is proper pervades Gonzales’s statements since the scandal began—as though if he can only establish that the administration had the legitimate power to fire these officials, the problem will go away. It also pervades the e-mail traffic among his aides. The most upsetting thing about this traffic, rife as it is with White House involvement and reflecting ugly pressure from Capitol Hill in certain cases, is that nobody ever stops and says, “Wait a minute; this is wrong. This is the U.S. Department of Justice we’re running here.” Nobody ever sent the email that said, “It’s very important in my view for [this] institution to be an ‘other’ in American life, … because [our] people [have] to stand up before juries of all stripes, talk to sheriffs of all stripes, judges of all stripes.” That latter statement had to await Comey’s testimony. And Gonzales, for his part, still doesn’t seem to understand how damning of his leadership that fact is.

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The most moving bit of Comey’s testimony did not actually deal with the U.S. attorneys scandal specifically; it came when he was asked about a related allegation—now under investigation—that a department official was subjecting applicants for career positions to political litmus tests. That, Comey said, is 

the most serious thing that I’ve heard come up in this entire controversy. If that was going on, that strikes at the core of what the Department of Justice is. You just cannot do that. You can’t hire assistant U.S. attorneys based on political affiliation … because it deprives the department of its lifeblood, which is the ability to stand up and have juries of all stripes believe what you say. … I hope it didn’t happen. … But that is a very serious thing.

It says the world about the Bush administration that Comey is now a private citizen—derisively nicknamed “Cuomo” by the president—and Alberto Gonzales remains the attorney general of the United States.