The Volokh Conspiracy - Dealing with Gonzales:

Two interesting op-eds in today's New York Times offer ways to deal with the troubling persistence of Attorney General Alberto Gonzales. One calls for Congress to impeach Gonzales:

A false claim not to remember is just as much a lie as a conscious misrepresentation of a fact one remembers well. Instances of phony forgetfulness seem to abound throughout Mr. Gonzales's testimony, but his claim to have no memory of the November Justice department meeting at which he authorized the attorney firings left even Republican stalwarts like Jeff Sessions of Alabama gaping in incredulity. The truth is almost surely that Mr. Gonzales's forgetfulness is feigned — a calculated ploy to block legitimate Congressional inquiry into questionable decisions made by the Department of Justice, White House officials and, quite possibly, the president himself.

Even if perjury were not a felony, lying to Congress has always been understood to be an impeachable offense.

Assuming for the sake of argument that lying to Congress about a matter on which Gonzales might have refused to testify amounts to an impeachable "high crime [or] misdemeanor," it's not necessarily the case that Gonzales lied. His claims not to recall key events in the firing of the U.S. Attorneys may have been, in descending order of seriousness, (1) conscious lies designed to thwart congressional oversight and shield wrongdoing by Gonzales or the White House, (2) conscious lies designed to protect what Gonzales believed were matters protected by executive privilege (without actually claiming the privilege), regardless of their effect on congressional oversight or on protecting allies, (3) gross nonfeasance or incompetence, which caused him to fail to devote sufficient attention to the matter, and thus not to remember these events because he was concentrating on others, or (4) genuine forgetfulness. I think something like #2 or #3 is most likely. In the case of #2 Gonzales should have invoked a politically costly executive-privilege claim. All four are sufficient reason for Gonzales to resign.

But as a prudential matter I am reluctant to say at this point that Congress should begin impeachment proceedings, even if it has the right to do so. For better or worse, impeachment is the nuclear option in American politics. Only one other executive cabinet member has ever been impeached. No attorney general has ever been impeached; when they get in bad trouble, they tend to resign, which Gonzales may yet do. Impeachment proceedings against an AG would be a time-consuming and absorbing national drama which, however constitutionally warranted, may still be avoided through resignation. Impeachment proceedings would increase the political pressure on Gonzales to resign, but they might also cause the administration and its supporters in Congress to dig in their heels against a "partisan" Democratic Congress.

The main role of Congress here is not to impeach, but to make sure that when the Executive branch exercises its power in a way that undermines confidence in the Justice Department, it is called to political account. That is what has happened and is happening in the case of Alberto Gonzales, even with his claims of amnesia, which are bringing public ridicule and contempt upon him and the administration. My hunch is that he will try to find a face-saving way to resign in the next few months. The question is whether waiting that long will do so much damage to the functioning and credibility of the DoJ that we ought to begin impeachment proceedings (which might also take months), to increase the pressure on him to go sooner. I don't think we're there yet.

The second op-ed is more radical, calling for structural reform at the Justice Department:

I suggest we begin by making the attorney general job no longer a cabinet position. . . .

The solution is to have the attorney general appointed to a fixed term — say, 15 years — that wouldn't be coterminous with the tenure of the president who appoints him. As with the director of the F.B.I. (a 10-year term) and the chairman of the Federal Reserve (a four-year, renewable term), the appointment would be made by the president with the advice and consent of the Senate. Congress's oversight would ensure that no political hack or crony of the president could be handed the job.

Likewise, the 93 United States attorneys should not be political apparatchiks, but talented lawyers selected half from Republican ranks and half from Democratic, following the system used for regulatory bodies like the Federal Communications Commission. These men and women should also be subject to Senate confirmation.

Changes in the occupant of the White House should not affect the way justice is administered. If the Gonzales mess ends up giving us an apolitical Department of Justice, the American people will be well served.

I have several concerns about this proposal. First, while the term of the AG would be longer, the process by which she's chosen would be basically the same. President nominates, Senate confirms. If Congress hasn't already exercised sufficient oversight to ensure that hacks and cronies aren't appointed, it's not clear why that would change much (though a longer term for the AG might make Senators take their job somewhat more seriously). What seems most to drive real oversight on appointments is not the particulars of Congress's structural role but whether it is in the hands of the opposing party. That partisan reality is unchanged by the proposal.

Second, I'm not sure we'd profit from an AG "independent" of the president and removable (presumably) only by impeachment. The experience of the FBI, for example, does not inspire much confidence. Incompetence and abuse of power come just as easily with "independence" as with hackery. I'd be concerned about a tyrannical, long-serving AG in the mold of J. Edgar Hoover who couldn't be removed easily by impeachment or forced to resign.

Third, I don't see how the proposal would really give us an "apolitical" Justice Department so much as a "bi-political" one, with both Democrats and Republicans getting their favored candidates in particular U.S. Attorney offices.

Finally, the proposal would represent a serious diminition of the President's power and duty to take care that the laws be faithfully executed. It's not that the proposal is unconstitutional. It's that it's constitutionally unwise. It's a break with two centuries of tradition, under which we have usually had acceptable and competent AGs and sometimes outstanding ones. We may think that President Bush has abused his authority, made extravagant claims about executive power, and even violated the laws he is supposed to enforce. But he will not always be the president. When there are other ways to deal with his excesses, as there are, it seems to me short-sighted to base fundamental reform of the executive branch on the sometimes disquieting experience of his presidency.

	[Dale Carpenter, May 3, 2007 at 12:53pm] Trackbacks Dealing with Gonzales: Two interesting op-eds in today's New York Times offer ways to deal with the troubling persistence of Attorney General Alberto Gonzales. One calls for Congress to impeach Gonzales: A false claim not to remember is just as much a lie as a conscious misrepresentation of a fact one remembers well. Instances of phony forgetfulness seem to abound throughout Mr. Gonzales's testimony, but his claim to have no memory of the November Justice department meeting at which he authorized the attorney firings left even Republican stalwarts like Jeff Sessions of Alabama gaping in incredulity. The truth is almost surely that Mr. Gonzales's forgetfulness is feigned — a calculated ploy to block legitimate Congressional inquiry into questionable decisions made by the Department of Justice, White House officials and, quite possibly, the president himself. Even if perjury were not a felony, lying to Congress has always been understood to be an impeachable offense. Assuming for the sake of argument that lying to Congress about a matter on which Gonzales might have refused to testify amounts to an impeachable "high crime [or] misdemeanor," it's not necessarily the case that Gonzales lied. His claims not to recall key events in the firing of the U.S. Attorneys may have been, in descending order of seriousness, (1) conscious lies designed to thwart congressional oversight and shield wrongdoing by Gonzales or the White House, (2) conscious lies designed to protect what Gonzales believed were matters protected by executive privilege (without actually claiming the privilege), regardless of their effect on congressional oversight or on protecting allies, (3) gross nonfeasance or incompetence, which caused him to fail to devote sufficient attention to the matter, and thus not to remember these events because he was concentrating on others, or (4) genuine forgetfulness. I think something like #2 or #3 is most likely. In the case of #2 Gonzales should have invoked a politically costly executive-privilege claim. All four are sufficient reason for Gonzales to resign. But as a prudential matter I am reluctant to say at this point that Congress should begin impeachment proceedings, even if it has the right to do so. For better or worse, impeachment is the nuclear option in American politics. Only one other executive cabinet member has ever been impeached. No attorney general has ever been impeached; when they get in bad trouble, they tend to resign, which Gonzales may yet do. Impeachment proceedings against an AG would be a time-consuming and absorbing national drama which, however constitutionally warranted, may still be avoided through resignation. Impeachment proceedings would increase the political pressure on Gonzales to resign, but they might also cause the administration and its supporters in Congress to dig in their heels against a "partisan" Democratic Congress. The main role of Congress here is not to impeach, but to make sure that when the Executive branch exercises its power in a way that undermines confidence in the Justice Department, it is called to political account. That is what has happened and is happening in the case of Alberto Gonzales, even with his claims of amnesia, which are bringing public ridicule and contempt upon him and the administration. My hunch is that he will try to find a face-saving way to resign in the next few months. The question is whether waiting that long will do so much damage to the functioning and credibility of the DoJ that we ought to begin impeachment proceedings (which might also take months), to increase the pressure on him to go sooner. I don't think we're there yet. The second op-ed is more radical, calling for structural reform at the Justice Department: I suggest we begin by making the attorney general job no longer a cabinet position. . . . The solution is to have the attorney general appointed to a fixed term — say, 15 years — that wouldn't be coterminous with the tenure of the president who appoints him. As with the director of the F.B.I. (a 10-year term) and the chairman of the Federal Reserve (a four-year, renewable term), the appointment would be made by the president with the advice and consent of the Senate. Congress's oversight would ensure that no political hack or crony of the president could be handed the job. Likewise, the 93 United States attorneys should not be political apparatchiks, but talented lawyers selected half from Republican ranks and half from Democratic, following the system used for regulatory bodies like the Federal Communications Commission. These men and women should also be subject to Senate confirmation. Changes in the occupant of the White House should not affect the way justice is administered. If the Gonzales mess ends up giving us an apolitical Department of Justice, the American people will be well served. I have several concerns about this proposal. First, while the term of the AG would be longer, the process by which she's chosen would be basically the same. President nominates, Senate confirms. If Congress hasn't already exercised sufficient oversight to ensure that hacks and cronies aren't appointed, it's not clear why that would change much (though a longer term for the AG might make Senators take their job somewhat more seriously). What seems most to drive real oversight on appointments is not the particulars of Congress's structural role but whether it is in the hands of the opposing party. That partisan reality is unchanged by the proposal. Second, I'm not sure we'd profit from an AG "independent" of the president and removable (presumably) only by impeachment. The experience of the FBI, for example, does not inspire much confidence. Incompetence and abuse of power come just as easily with "independence" as with hackery. I'd be concerned about a tyrannical, long-serving AG in the mold of J. Edgar Hoover who couldn't be removed easily by impeachment or forced to resign. Third, I don't see how the proposal would really give us an "apolitical" Justice Department so much as a "bi-political" one, with both Democrats and Republicans getting their favored candidates in particular U.S. Attorney offices. Finally, the proposal would represent a serious diminition of the President's power and duty to take care that the laws be faithfully executed. It's not that the proposal is unconstitutional. It's that it's constitutionally unwise. It's a break with two centuries of tradition, under which we have usually had acceptable and competent AGs and sometimes outstanding ones. We may think that President Bush has abused his authority, made extravagant claims about executive power, and even violated the laws he is supposed to enforce. But he will not always be the president. When there are other ways to deal with his excesses, as there are, it seems to me short-sighted to base fundamental reform of the executive branch on the sometimes disquieting experience of his presidency.