Libertarian Leanings

The price of a new AG

Robert Bork predicts that Senate confirmation of a new U.S. Attorney General to replace Alberto Gonzales will carry the appointment of a special prosecutor as its price tag.

But the problem created by Gonzales’s resignation is likely to spread well beyond the DOJ and hamstring the remainder of George Bush’s administration. The president must soon nominate a successor to Gonzales and Senate Democrats are surely contemplating making the confirmation of that person contingent upon the appointment of a special prosecutor. The appointee will inevitably be charged, among other things, with investigating the firing of eight U. S. attorneys, possible perjury by Gonzales and others who testified before the Senate Judiciary Committee, and whatever additional matters Senate Democrats’ fertile imaginations can pack into the special prosecutor’s charter. Grand juries will be convened, subpoenas issued, witnesses badgered, documents demanded from the White House, and so on, through the full repertoire of special prosecutors’ antics.

Bork is not the first to make that prediction.  Power Line recommends a recess appointment.

Judiciary committees continue their dramatics

House and Senate judiciary committees issued subpoenas yesterday to former White House counsel Harriet E. Miers and Sara M. Taylor, a former White House political director.  The object is to keep the media drama going over the dismissal of nine U.S. attorneys who are appointed by and serve at the pleasure of the President. 

By targeting two former administration officials, Sen. Patrick J. Leahy (D-Vt.) and Rep. John Conyers Jr. (D-Mich.) are hoping that Miers and Taylor might decide to reach accords with the House and Senate committees, regardless of the administration's interests, according to congressional aides.

A similar tactic resulted in damaging public testimony earlier this year from D. Kyle Sampson and Monica M. Goodling, two former senior aides to Attorney General Alberto R. Gonzales, who were at the center of the prosecutors' dismissals.

Sen. Charles E. Schumer (D-N.Y.) said Democrats are keenly interested in obtaining testimony from presidential adviser Karl Rove but must first question other White House officials. A succession of Justice Department officials have denied responsibility for placing prosecutors' names on the firing lists, which Sampson compiled.

"We still haven't found out who actually concocted this scheme," Schumer said.

I think there's a law, actually.

§ 541. United States attorneys

(a) The President shall appoint, by and with the advice and consent of the Senate, a United States attorney for each judicial district.

(b) Each United States attorney shall be appointed for a term of four years. On the expiration of his term, a United States attorney shall continue to perform the duties of his office until his successor is appointed and qualifies.

(c) Each United States attorney is subject to removal by the President.

Method to the congressional madness

Tod Lindberg makes a pretty good case for an underlying motive to the Democrats' ongoing persecution of U.S. Attorney General Alberto Gonzales.  The surface issue is the firing of eight U.S. attorneys who the administration claims were sacked because they were not on board with Bush law enforcement philosophies, which includes among other things a focus on voter fraud.  Early announcements of the firings characterized U.S. attorney decisions not to pursue voter fraud and illegal immigration cases as "performance" issues.  But clarifications and apologies were issued to both the attorneys who had been removed and to congress for the misunderstanding. 

You might think that would clear up the matter, since it is the President's right and duty to appoint U.S. attorneys.  However, the investigation into these removals is alive and well.  It's a remarkable performance in which congressional Democrats have been investigating the possibility that there were political motives behind the dismissals. 

Democrats in the House and Senate say they intend to press ahead with their investigation to determine whether partisan politics played a role in the dismissal of the eight U.S. attorneys.

For their part, Republican leaders counter that politics is driving the investigation.

Sen. Mel Martinez (R-Fla.), the GOP party chairman, sent out a message Wednesday accusing Democrats of "feigning outrage" over the Justice Department's actions.

"There is no question that U.S. attorneys, like all political appointees, serve at the pleasure of the president," Martinez said. "That was true when Bill Clinton's Justice Department replaced all 93 U.S. attorneys, and it remains true today."

As the Democrats press forward, Mr. Lindberg points out that there is a method to their madness.  It's not really Gonzales the Democrats are after.  It's the opportunity to negotiate the confirmation of his replacement.  Former Representative Elizabeth Holtzman, who served on the House Judiciary Committee when it voted to impeach Richard Nixon in 1974, has written a book entitled The Impeachment of George W. Bush: A Practical Guide for Concerned Citizens.  She and others recall the chain of events leading up to the resignation of Richard Nixon over the Watergate scandal.  Take the case of Richard Kleindienst, who had resigned as Nixon's attorney general.

Nixon looked to his recently installed secretary of defense, Elliot Richardson, to move over to the Justice Department. The confirmation process before the Democratic-controlled Senate Judiciary Committee was brutal. The price of confirmation for Richardson was his willingness to appoint a "special prosecutor" with a broad mandate and a grant of independence to investigate the Watergate crimes and unfolding coverup.

The price for confirmation of Gonzales' replacement will be another special prosecutor, one the Democrats hope will be far more successful than was Patrick Fitzgerald, who failed to find any conspiracy or coverup in the White House over the Valerie Plame affair.  As with that faux scandal, this one is nurtured and kept alive with help from the media.  With their support the current House Judiciary Committee Chairman, Representative John Conyers, who by the way has his own book on the market, George W. Bush Versus the U.S. Constitution: The Downing Street Memos and Deception, Manipulation, Torture, Retribution, Coverups in the Iraq War and Illegal Domestic Spying, remains in the hunt.

Lately however, Gonzales' prospects for staying on have improved.

The mostly muted five-hour hearing in front of the House Judiciary Committee was a sharp contrast to Gonzales‘ sometimes testy appearance three weeks ago when Senate Republicans questioned his competence to run the Justice Department. One senator at that session joined a small GOP chorus saying he should step down.

That did not satisfy exasperated Democrats, who accused Gonzales of being evasive.

"I accept responsibility," Gonzales answered.

President Bush steadfastly has stood by Gonzales, his longtime counselor and friend. Even career Justice Department staffers angered by the attorney general‘s response to the firings acknowledge Gonzales appears to have beaten back calls to leave.

We can expect that the calls for Gonzales to leave will keep coming.  Next up in the witness chair is Monica Goodling who earlier had refused to testify, citing Fifth Amendment protections against self incrimination, and who, through her lawyer, had accused Senate and House Democrats of setting a perjury trap.  Ms. Goodling has been granted immunity, and so she will testify.  House and Senate Democrats will undoubtedly say there is something in Ms. Goodlings testimony that cries out for the resignation of Alberto Gonzales.  But it's not Gonzales that they care about.  It's that special prosecutor.  And if you think this is a witch hunt...

Management style

Power Line sees the Gonzales episode in much the same way that I do.

As I read it, Gonzales largely delegated the decisionmaking process, but accepts responsibility for the outcomes. I see no inconsistency here, though again I would prefer a more hands-on Attorney General.

Statement before testimony

U.S. Attorney General Albert R. Gonzales issued a statement in the form of a Washington Post column as a prelude to his testimony before Congress on Tuesday.  In his column he makes a point that's worth repeating.

While I have never sought to deceive Congress or the American people, I also know that I created confusion with some of my recent statements about my role in this matter. To be clear: I directed my then-deputy chief of staff, Kyle Sampson, to initiate this process; fully knew that it was occurring; and approved the final recommendations. Sampson periodically updated me on the review. As I recall, his updates were brief, relatively few in number and focused primarily on the review process.

A source of this controversy is the testimony of Kyle Sampson, former chief of staff to Mr. Gonzales.  Sampson was reported to have contradicted the attorney general's claim of a having limited role in the dismissals of eight U.S. attorneys when he testified that he, Sampson, had consulted regularly with the attorney general.  What exactly does regularly mean?

The two men talked about the dismissal plans over a two-year period, Mr. Sampson said, beginning in early 2005 when Mr. Gonzales was still the White House counsel. Mr. Sampson said he had briefed his boss at least five times before December 2006, when seven of the eight prosecutors were ousted.

Five times in two years.  Based on that I wouldn't conclude that Gonzales played a prominent role in the process, but for the Democrats it's enough to launch yet another witch hunt.

Shocking discovery - political appointments are political

In a dramatic front page investigative report, the Washington Post today reveals the existence of a "spoils system" in highest reaches of government.  Amy Goldstein and Dan Eggen have made the startling discovery that the Bush Administration political appointees come from a select group -- people they know and trust.  Shocking!

No other administration in contemporary times has had such a clear pattern of filling chief prosecutors' jobs with its own staff members, said experts on U.S. attorney's offices. Those experts said the emphasis in appointments traditionally has been on local roots and deference to home-state senators, whose support has been crucial to win confirmation of the nominees.

Outrageous!  Democrats are indignant.

"If we have eight U.S. attorneys dismissed because they were not 'loyal Bushies,' then how many of the remaining U.S. attorneys are?" asked Sen. Richard J. Durbin (D-Ill.), borrowing a phrase that Gonzales's former chief of staff, D. Kyle Sampson, used in an internal e-mail to describe criteria by which prosecutors were chosen to be fired.

Other key points made in the article provide clues as to why they wrote the thing in the first place.  For example:

Some of the insiders who had no ties to their new communities have been well received.

When Gonzales was preparing to appoint Deborah Rhodes, counselor in the department's criminal division, she stopped by to visit with Alabama's two Republican senators. "I don't think I'd ever met her, or heard of her for that matter," recalled Sen. Jeff Sessions, a former U.S. attorney in the southern Alabama district in which Rhodes was to work. Sessions said he and Sen. Richard C. Shelby had intended to recommend someone local for the job permanently but ended up urging Bush to nominate Rhodes, because she appeared to be turning around an office beset by low morale and a probe of her predecessor.

Other insiders who have been made U.S. attorneys have drawn complaints that they are political or inexperienced.

Missouri had for years been a hub of GOP allegations of election fraud -- long disputed by Democrats -- when Schlozman arrived a year ago from Justice's civil rights division. Six days before the November elections, he announced indictments of four voter-registration recruiters for a left-leaning group, Association of Community Organizations for Reform Now, or ACORN, for allegedly submitting fraudulent registrations to the election board in Kansas City, Mo. Democrats have protested.

Unconscionable! U.S. attorneys might actually be expected to look into criminal behavior by Democrats or their allies on the left.  Why it's unthinkable.

And finally, here is the real tragedy of it all:

Choosing insiders as U.S. attorneys is not improper, given the wide latitude the law provides presidents in selecting federal prosecutors, and all administrations tend to choose those who share their basic legal outlook and party affiliation.

It's all legal, proper, and above board.  A dastardly scheme by the Bush Administration to enforce the law turns out to be legal.  Could there be anything worse than that?