- The Washington Times - Friday, March 16, 2007

Back in 1988, during my tenure as the United States Attorney in Atlanta, and while my office was concluding an investigation of Pat Swindall, at the time one of only two Republican congressmen from Georgia, the other — Newt Gingrich — opined publicly that perhaps I was a “rogue U.S. Attorney” for pursuing this particular prosecution.

In fact, the future Speaker of the House was mild in his veiled criticism, compared to the furious, behind-the-scenes activity by many other Republican leaders unhappy with my decision to prosecute a sitting Republican congressman.

While the criticism quickly abated months later when a jury found Swindall guilty of perjury and obstruction of justice, the whole exercise revealed some important lessons for me and for the system of criminal justice in our country.

As the Swindall case unfolded, and as calls mounted by supporters of the former suburban Atlanta congressman to halt our prosecution, the Justice Department, headed by Attorney General Edwin Meese (and then, Dick Thornburgh) responded clearly and consistently. The department’s position was made clear — as long as a U.S. attorney is pursuing a valid prosecution, even one involving a sitting elected official, the department will not itself interfere to stop, slow or speed up that process; nor would it allow the White House to improperly influence such matters.

By this example were the American people and other U.S. Attorneys reminded that enforcement of our federal criminal laws would be based solely on the facts and the law, and not on political concerns or pressures.

The profound importance of this lesson extended far beyond the case involving then-Rep. Swindall or any other person charged with criminal offenses. It reinforced the principal that justice is blind and that the American people’s faith in the justice system was neither misplaced nor endangered.

Now, one generation later, the Justice Department response to similar pressures is very different and very troubling. The actions of top Justice Department officials, including Attorney General Alberto Gonzales, illustrates that these lessons have been forgotten or deliberately ignored.

While the hubris of a sitting U.S. senator attempting to pressure a U.S. attorney to accelerate a prosecution for electoral gain is not unique in the annals of federal criminal law, the fact that an attorney general has allowed even the appearance that such pressure figured in the dismissal of a presidentially appointed U.S. attorney is unusual and deeply troubling.

Also disturbing are e-mails that indicate a determined effort by high political operatives at the White House, working with political appointees at Justice, to identify, remove and replace U.S. attorneys deemed insufficiently loyal to the president. Such a maneuver, while not unlawful — after all a president possesses authority to fire all or particular U.S. attorneys at will — is highly corrosive of the fundamental and vital notion that federal justice is administered fairly, impartially and in a nonpartisan manner.

That Mr. Gonzales has accepted responsibility for the “mistakes” made in this matter is laudable; but he should not be let off the hook so easily. Nor should his boss, the president of the United States.

We have an attorney general who seems to view his job as an opportunity to show the country he can overcome “obstacles” by weathering this storm without backing down. But there is much more at stake than one man’s odyssey to prove himself a tough hombre. The question is not what “obstacles” Alberto Gonzales has had to overcome in his career; that is completely irrelevant. What Congress and the American people should now ask themselves is: Where is the systemic commitment to merit and fairness that used to prevail in the halls of Justice? Where are the lawyers with the character to resist pressure to do the wrong thing, not because doing so might prove “disruptive,” but because doing so would be deeply and morally wrong? Where is the adult leadership?

Of course, for an attorney general who believes the great writ of habeas corpus is no longer a bedrock principle of American jurisprudence, and who believes a president is not bound to follow requirements of the laws signed by him or his predecessors, such questions probably are viewed as unimportant.

It has been a long time since we’ve seen a top government official put fealty to the Constitution ahead of blind loyalty to a president and step aside; and it doesn’t appear we will witness it now. But even if the attorney general steps down for the wrong reasons, the process of healing the damage to the institutions of our federal justice system can at least begin.

Bob Barr is a former Republican member of the U.S. House of Representatives from Georgia and a former U.S. attorney there.


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