- The Washington Times - Monday, April 9, 2007

Attorney General Alberto Gonzales should resign. Under the Constitution, the attorney general is steward of the rule of law which, like Caesar’s wife, should be above suspicion. Mr. Gonzales, however, has created a well-founded alarm that he has manipulated the law and United States attorneys to boost President Bush and the Republican Party.

As White House counsel, Mr. Gonzales conflated his oath to uphold and defend the Constitution with loyalty to Mr. Bush. He supported Mr. Bush’s decision to flout the Foreign Intelligence Surveillance Act of 1978, as amended six times since September 11, 2001, by instructing the National Security Agency (NSA) to target U.S. citizens on U.S. soil on his say-so alone. He participated in the infamous Justice Department memorandum defending torture as a constitutional prerogative of the president.

As attorney general, he saluted President Bush’s directive to close a Justice Department inquiry into the legal advice received by the NSA to justify its unchecked spying on American citizens. He has threatened newspapers with prosecution under the Espionage Act for disclosing highly questionable government practices, for example, extraordinary renditions entailing kidnappings, secret prisons and torture abroad. He has championed executive privilege to thwart congressional oversight of the president’s claimed emergency war powers.

In sum, Mr. Gonzales’ demonstrated pliability has enabled the White House to repeatedly assault the rule of law. In contrast to a predecessor, Elliott Richardson, he would have honored Richard Nixon’s directive to discharge special prosecutor Archibald Cox for his aggressive pursuit of the Watergate cover-up.

Mr. Gonzales’ central role and equivocations regarding the firings of eight United States attorneys in 2006 confirms his unfitness.

U.S. attorneys are endowed with enormous prosecutorial discretion that can be easily skewed for partisan advantage. An arguable technical violation of the criminal code can be pinned on virtually anyone. U.S. attorneys thus enjoy open-ended power to obtain grand jury subpoenas to investigate political or personal adversaries. The latter are instantly place under a cloud and compelled to incur lawyer fees.

As Sen. Herb Kohl, Wisconsin Democrat, forcefully elaborated during a March 29 Senate Judiciary Committee hearing: “It is a sacred tenet of our democracy that politics must stay out of criminal prosecutions. Merely by pursuing investigations and obtaining indictments, U.S. attorneys have enormous power to blacken reputations and destroy lives. To retain U.S. attorneys on the basis of loyalty to a political agenda, to fire other well-qualified and -regarded U.S. attorneys whom the political echelons at the Justice Department and the White House suspected were not ‘loyal Bushies’ strikes at the very heart of our system of justice.” Accordingly, the attorney general is saddled with a heavy burden to ensure that the firing of U.S. attorneys avoids the appearance of injecting partisan considerations in the choice of crimes or individuals that will be investigated or prosecuted.

Mr. Gonzales failed miserably on that score in approving the eight firings now under investigation by the House and Senate Judiciary Committees. He permitted Karl Rove, the White House’s ultimate political operative, to play a decisive role.

Mr. Rove had complained to him that U.S. attorneys in three jurisdictions were insufficiently eager to pursue voter fraud cases. As a nonlawyer, however, Mr. Rove had no standing to second-guess U.S. attorneys steeped in both the facts and the law.

Mr. Gonzales has declined to publicly rebuke Sen. Pete Domenici or Rep. Heather Wilson, both New Mexico Republicans, for their direct intercessions with the U.S. attorney for New Mexico, David Iglesias, concerning particular investigations.

Indeed, Mr. Gonzales has neglected to issue a formal memorandum to either Congress or the White House instructing that any quarrels with U.S. attorneys should be communicated directly to him and that he would resist any effort to pivot investigative or prosecution decisions on what would help the Republican Party.

His insistence that the eight firings were “for reasons related to policy, priorities and management, what have been referred to broadly as ‘performance-related’ reasons” has been thoroughly discredited. Mr. Iglesias, for example, scored high on all customary measures of professional talent and accomplishment.

The attorney general’s chief of staff, D. Kyle Sampson, a major player in orchestrating the firings, resigned precisely because an appearance of improper political motives had been created. The attorney general’s culpability is even greater because of his greater responsibility. His equivocations and counterfactual assertions on that count further undermine his suitability. He has maintained he was a spectator to the maneuverings of his subordinates, like a chief executive officer of a multinational corporation with supervision of hundreds of thousands of employees.

But Mr. Sampson testified under oath to the Senate Judiciary Committee: “[T]he attorney general was aware of this process from the beginning in early 2005. He and I had discussions about it during the thinking phase of the process. Then after the sort of more final phase of the process in the fall of 2006 began, we discussed it. … And then, ultimately, he approved both the list and the notion of going forward and asking for these resignations.”

The attorney general may not have committed a crime. But the steward of the rule must satisfy a much higher standard.

Bruce Fein is a constitutional lawyer at Bruce Fein & Associates and chairman of the American Freedom Agenda, a nonpartisan organization dedicated to restoring the Constitution’s checks and balances and protections against government abuses.

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