- The Washington Times - Tuesday, May 29, 2007

Evidence continues to mount that Attorney General Alberto Gonzales has committed an impeachable offense: namely, turning law into slabs of political calculation with ulterior motives.

The latest chapter comes from the testimony of the attorney general’s former assistant, Monica Goodling, before the House Judiciary Committee. She confessed to routinely violating civil service laws and the First Amendment by making political affiliation the touchstone for hiring or firing decisions. Mr. Gonzales neither publicly rebuked Ms. Goodling’s misconduct nor voiced astonishment that she elevated loyalty to the Republican Party over legal competence in nonpolicymaking positions. The committee should commence an inquiry into whether articles of impeachment should be approved by the full House and sent to the Senate for trial.

Article II, section 4 of the Constitution provides: “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high crimes and Misdemeanors.” As Alexander Hamilton explained in the Federalist Papers, an impeachable offense is essentially a political crime that shatters public confidence in government itself. It includes both malfeasance and nonfeasance.

James Madison, father of the Constitution, lectured in the first Congress that impeachment would be proper for a civil officer who “suffers [his subordinates] to perpetrate with impunity high crimes and misdemeanors against the United States, or neglects to superintend their conduct, so as to check their excesses.”

Mr. Gonzales is the steward of the rule of law — the centerpiece of domestic tranquility and social order. Justice requires the appearance of justice. The attorney general is obligated to keep the rule of law, like Caesar’s wife, above suspicion. But Mr. Gonzales has engendered a widespread belief that the law in his hands is a political tool to advance the partisan agendas of President Bush or the Republican Party. Consider his discharges of nine United States attorneys.

The attorney general initially concocted stories of incompetence or unresponsiveness to Mr. Bush’s law enforcement priorities. When these allegations were rebutted, Mr. Gonzales was forced to concede he relied on the unelaborated collective recommendations of anonymous subordinates, none of whom has been identified or has accepted responsibility in the matter.

The attorney general neglected to superintend the vetting of United States attorneys, permitted the partisan concerns of the White House to play a major if not dispositive role, and, in the case of New Mexico, confessed that the incumbent was discharged because Sen. Pete Domenici had lost confidence in the United States attorney’s eagerness to prosecute Democrats for alleged voting fraud or otherwise. Direct and circumstantial evidence indicate the White House decided on the United States attorney hit list in hopes of manipulating law enforcement for partisan advantage; and, that the attorney general was a pliable and willing executioner. Mr. Gonzales’ Clintonesque-like equivocations and hair-splitting in defending his suboptimal performance has further undermined public confidence in his integrity.

The attorney general has also routinely subordinated the Constitution’s checks and balances and protections against government abuses to Mr. Bush’s political maneuvers and quest to reduce Congress and the Supreme Court to ciphers. Mr. Gonzales has maintained the following, contrary to the weight of established constitutional law:

• The Great Writ of habeas corpus to prevent arbitrary or oppressive executive detentions enjoys no constitutional standing.

• The Constitution crowns the president with authority to defy federal laws or treaties that prohibit torture, regulate the gathering of foreign intelligence, or restrict the use of military force abroad.

• The president may pluck American citizens from their homes and detain them indefinitely as enemy combatants on his say-so alone.

• Federal courts should never review presidential decisions made in the name of national security, for example, President Franklin D. Roosevelt’s creation of concentration camps for Japanese-Americans.

• The president may use military force anywhere in the world, including U.S. soil, to kill any citizen or noncitizen suspected of complicity with international terrorism;

• The president may disregard provisions of bills he has signed into law that he maintains are unconstitutional.

• The president is constitutionally entitled to conceal from Congress and the American people secret spying programs that historically have been manipulated to gather intelligence against political opponents.

• Congress is powerless in exercising oversight of the executive branch to insist on the testimony of the president’s inner circle, for example, Karl Rove or Harriet Miers.

The attorney general’s approval of the National Security Agency’s (NSA) warrantless domestic surveillance program in contravention of the Foreign Intelligence Surveillance Act of 1978 (FISA) may have implicated him in crime. FISA makes electronic surveillance to gather foreign intelligence criminal unless authorized by statute. The committee needs to explore Mr. Gonzales’ role in approving an NSA spying program over the objections of the Justice Department in March 2004 and his deviousness in attempting to bypass acting Attorney General James Comey by importuning the ailing, disoriented and hospitalized Attorney General John Ashcroft.

Militating in favor of Mr. Gonzales’ impeachment is not only public cynicism about the law, but also the complete demoralization and disesteem of the Justice Department. Employees are never enthusiastic about working for a compromised or talentless boss. Gifted Republican lawyers are not vying to fill high-level vacancies. Federal judges and juries are suspicious of the department’s prosecutorial decisions.

Impeachment, conviction and removal of the attorney general constitute an extraordinary remedy for abuses of executive power. The attorney general is an arm of the president, not of Congress. But with the swelling of presidential powers in the aftermath of September 11, 2001, the greater danger to the nation’s checks and balances would be employing impeachment too infrequently rather than too readily.

Bruce Fein is a constitutional lawyer and international consultant at Bruce Fein & Associates and the Lichfield Group and chairman of the American Freedom Agenda, an organization devoted to restoring checks and balances and protections against government abuses.

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