The Volokh Conspiracy

The Chertoff Rumor:
If the rumors are true that Gonzales will soon resign and Bush will nominate Chertoff to replace him as AG, that would be a very positive development. Gonzales should have left months ago for the good of the Department, and his departure would be better late than never. Chertoff would be a strong choice for AG: as a former AUSA, former Assistant AG for the Criminal Division, and former federal judge, he's a much better fit as AG than he was as Secretary of Homeland Security. In a perfect world it would be better to have an outsider come in as AG to let the Department of Justice make more of a fresh start. But then we don't live in a perfect world, and among the realistic options I think Chertoff is the natural choice. On the other hand, I don't know enough about DHS to know who would or should replace Chertoff. Any thoughts?

Related Posts (on one page):

  1. Gonzales to Resign:
  2. The Chertoff Rumor:
  3. Could Gonzales Be Going?
T.L.:
In a perfect world we wouldn't have the DHS either.
8.26.2007 2:00pm
Steven Lubet (mail):
What are the chances that Bush vetted Chertoff with some Senate Democrats?
8.26.2007 2:15pm
Dave N (mail):
How about Bill Cohen? He has credibility with Democrats due to his tenure as Clinton's SecDef. He has credibility with Republicans because, well, he is one. He also is a former member of the Senate--which is an useful credential (though after the Ashcroft confirmation, I am not sure how much of one).
8.26.2007 2:21pm
Perseus (mail):
An interesting suggestion that I've seen is Jack Welch, former head of GE. Like GE, DHS is a conglomerate of disparate divisions. Doubt Welch would take the position this late into Bush's term though.
8.26.2007 3:20pm
Benjamin Davis (mail):
I understand that when Chertoff was at Justice Criminal Division he agrred to or help author the memorandum of understanding with CIA about the list of enhanced interrogation techniques that - if used - would not lead to prosecution of CIA types. Those, of course are the ones that the ICRC is now calling torture per the Jane Mayer New Yorker article last week. I hope that in confirmation hearings that would be discussed.

Given his approach on Katrina I must say that I have absolutely no confidence in him doing anything to enforce rights of the poor or the oppressed in this country. Or maybe, he will launch a couple of high profile cases just to try to seek some redemption at the end of his tenure in government.

Best,
Ben
8.26.2007 3:26pm
BruceM (mail) (www):
Let gonzo head DHS for all I care. As long as he's not running the DOJ. Have them switch places. A respected, honest, competent DOJ is far more important than DHS.
8.26.2007 3:33pm
Sigh:
In an alternative universe, a performance like Chertoff's during Katrina would be sufficient to disqualify the man from further promotion. In this one, he's the best of "the realistic options" and "a strong choice." After all, only *one* American city was destroyed under his watch . . . .
8.26.2007 3:34pm
molonlabe28 (mail):
I sure liked Chertoff a lot more before he became an administration pitchman for the recently deceased immigration bill.

What was he thinking?

He probably would have been the best choice for AG 7 years ago.

As for who would replace him at Homeland Security, the answer is simple - Sheriff Joe Arpaio, of Maricopa County, Az.
8.26.2007 3:36pm
dearieme:
Why not just raffle it?
8.26.2007 3:41pm
Greedy Clerk (mail):
Bad choice. Rather keep Gonzo as he has no credibility.
8.26.2007 3:43pm
Greedy Clerk (mail):
Bad choice. Rather keep Gonzo as he has no credibility.
8.26.2007 3:43pm
J. F. Thomas (mail):
My God, under the Peter Principle you are only supposed to rise one level above your level of competence. What is the Bush Principle, you rise eight or nine levels above your level of competence?
8.26.2007 4:30pm
MacGuffin:
Would it really require perfection to have an outsider come in as AG, or something far less, yet still well above the mark that the Bush administration sets for themselves?
8.26.2007 4:33pm
Cornellian (mail):
Randy Barnett. That is all.
8.26.2007 4:52pm
JunkYardLawDog (mail):
I don't care one way or the other about Gonzales, but if this is true and it gets the incompetent idiot Chertoff out of immigration enforcement then I'm all for it.

Chertoff announced to the entire country that he could not secure the borders without the new immigration bill, that thank god was defeated. Since he has publicly stated he was not competent to secure the borders he should have been fired, and someone who can secure the borders put in his place.

He also made the ridiculous statement he didn't know how to find the illegal aliens in the country. I guess he's never been to walmart or a construction site or a landscaping company or a large agri-farm, etc. etc.

He has been completely incomptent at DHS, former judges, rarely make decent executives and managers. I don't think DOJ can get any worse at protecting the country so he won't screw things up there and Chertoff should have never been the head of DHS.

As for Chertoff's replacement, Joe Arpaio was mentioned by someone and he would be great. So would Tom Tancredo. However, Bush will undoubtedly make a completely incompetent choice and put some other incompetent Mexico appeaser who doesn't know how to find illegal aliens and has no interest in really securing the border in as the new head of DHS.

Says the "Dog"
8.26.2007 4:56pm
Eli Rabett (www):
Methinks Hillary Clinton has a few scores to settle with Chertoff dating back to the D'Amato hearings and she is in an excellent position to do so now.
8.26.2007 7:33pm
PatHMV (mail) (www):
Frankly, I think Chertoff may be the one guy who would have a HARDER time being confirmed than Gonzales. That he was the boss of "Brownie" before and during Katrina is a terrible black mark against him. Nominating him would give the Democrats an opportunity to skewer the administration on that issue. FEMA has not notably improved since then, either, which can be squarely laid at his feet. Combine that with connections (noted by an earlier commenter) to controversial interrogation measures, and he would be a field day for Congressional Dems. They'd pull up all the dirt about Gonzales again in the context of asking Chertoff what he would do about it, and then they'd dig into Chertoff for his sins at DHS.

Bush does like to let people go right after heat around them has died down, so I could see them doing this, but I think frankly they'd be better off just letting Gonzales eke out this last year.
8.26.2007 7:54pm
Old33 (mail):
If Gonzales was going to depart, I suspect he would have done so during the August Congressional recess, allowing the President to recess-appoint his successor. The bottom line is that virtually no one the WH would want to nominate could get through the Senate Judiciary Committee. So why even bother the fight?

Since it's now nearly September and we still have Gonzales at DOJ, I believe he'll be there until January 20, 2009.
8.26.2007 8:02pm
David M. Nieporent (www):
It's amazing how both the left ("Sigh") and right ("JunkYardLawDog") have this notion of government as a pure expression of will. If a federal bureaucrat can't actually deflect hurricanes from their paths with a wave of his pen, he's incompetent; if a federal bureaucrat can't simply seal the nation's borders by wishing really hard, he must be incompetent. We can solve the latter problem by replacing him with someone who really really really wants to do it.
8.26.2007 8:27pm
Just an Observer:
It will be interesting, if Gonzales goes, to see whether his departure will quell demands for investigating DOJ or accelerate them.

To the extent that such efforts have been motivated or distracted by a campaign to "get Gonzales," there may be a cathartic effect. But Judiciary Committee critics may try to leverage confirmation of a successor into a promise to appoint a special counsel.

Personally, I have never been comfortable with the conflation of various controversies -- the U.S. firings and the apparent violations of FISA, for example -- into something primarily about Gonzales. However, I also have never been comfortable with the administration's avoidance of internal legal checks in the department.
8.26.2007 9:27pm
Bob from Ohio (mail):
PatHMV nailed it. No way this happens.
8.26.2007 9:57pm
mrbill:
As long as they put someone in DHS (assuming they continue to have a DHS) that will be tough, unfair, and punitive on illegal immigration, that will be our guy.

And we would urge them to get rid of the ICE Queen Julie Myers in the mean time. The Dems (I think Wyden) have put a hold on her renomination and we suggest they just let her drop off the scene and move on to someone with actual credentials in the field.

When you have the head of the Border Patrol, David Aguilar and his Top officer in Laredo Carlos Carillo, both making speeches locally stating that it is NOT the Border Patrols duty to stop illegal crossings, then we have a much bigger problem. These two also need to resign or be fired.
8.26.2007 9:58pm
Eric Muller (www):
Orin, Mike Chertoff is not just a "former AUSA," he is also a former U.S. Attorney.
8.26.2007 10:00pm
SupremacyClaus (mail) (www):
Chertoff, a paper shuffler, was entirely inappropriate as head of Homeland Security. He would be competent suing the terrorists. He has not even sued the terrorists. I do not denigrate the impact of litigation on our enemies (see the effect on North Korea after a legal lien was placed on an account of only a $25 million).

We need someone to kill the terrorists, and not a hyper-proceduralist, ordering the strip searching of grandmas flying to Disney World. The goal of killing the terrorist has no compatibility with his legal indoctrination. The lawyer loves the criminal for the fees and jobs he generates for the profession's rent seeking. The idea of substantial harm to a criminal is taboo to the lawyer.

The new Homeland Security chief should come from the ranks of those with such experience.
8.26.2007 11:12pm
Gaius Marius:
Ted Olson for AG.
8.27.2007 12:02am
George Lyon (mail):
Unfortunately DHS — which was a bad idea to start with — became a joke with Chertoff pushing that disaster of an immigration bill. I agree Gonzales needs to go from DOJ, but Chertoff does not seem to have been a dazzling success at DHS for many of the same reasons other commenters have noted, Katrina not being one of them. Katrina was predominately a failure at the state and local level, but there is lots of blame to go around. How about Gen. Peter Pace for DHS and Jim Gilmore for Justice? A hardline duo, yes, but we are after all in a war against Islamic Fascism. Hardliners who are competent are what we need.
8.27.2007 12:24am
George Lyon (mail):
Strike what I just said re DOJ. I did not see the post immediately above. I agree Ted Olson would be a tremendous choice.
8.27.2007 12:26am
Apodaca:
Any thoughts?

Nah, just a gut feeling.
8.27.2007 7:17am
Anderson (mail) (www):
Why not just raffle it?

Statistically, that would likely be an improvement over Gonzales.

I would tend to agree that Chertoff isn't confirmable, if I had any faith in the Dems. Maybe Bush and his DNI will tell the media that Scary! Terror! Attacks! will happen if Chertoff isn't confirmed, and the Dems will bleat into line.
8.27.2007 9:04am
Anderson (mail) (www):
Damn, I can't tell any more whether I'm being snarky or incisive. Matt Yglesias:

... my best guess is that Bush will go out of his way to pick somebody fairly controversial -- someone whose confirmation liberals will find outrageous -- and then start loudly and immediately declaring that each hour's delay in confirming his nominee is putting thousands of lives at risk.
8.27.2007 9:21am
Zathras (mail):
Salon is now reporting that Gonzo has submitted his resignation letter, but it is not being made public until they decide on the replacement.
8.27.2007 9:37am
Anderson (mail) (www):
but it is not being made public until they decide on the replacement

This is of course an extremely difficult decision, since the LAST thing this administration wants is a serious law enforcement official in the AG's seat; yet, anyone hackish enough to be safe, might have trouble getting confirmed.
8.27.2007 9:55am
JunkYardLawDog (mail):
Nieporent,

Nothing can or will be accomplished unless the person in charge of accomplishing same wants to and wishes to accomplish same. Being aware of this simple fact or principle of life is not the same thing as saying something will be accomplished merely by wishing it be done really really hard. When the person in charge of securing the border states his belief it can't be done, he has already given up and failure is the only outcome that will follow. He has already expressed his incompetence for the job at hand. Chertoff has gone beyond saying he doesn't know how to do his job and doesn't think his job can be done by saying things like he doesn't even know how to find illegal aliens in the USA.

Successfully securing the border requires first a belief the job can be done and second a desire to actually accomplish that job. Chertoff's own words indicate he has neither the belief or the desire to secure the border. Does it take more than just belief and desire, of course, but all the more in the world won't matter and will just be for show or for waste if it isn't preceded by a positive belief and desire to get the job done successfully.

Says the "Dog"
8.27.2007 9:59am
Ella:
I really want top government officials to delude themselves about the feasibility of accomplishing a task, facts be damned. Faith based government has worked out so well in the past.
8.27.2007 10:04am
Ramza:

I really want top government officials to delude themselves about the feasibility of accomplishing a task, facts be damned. Faith based government has worked out so well in the past.

No the top govement officals don't have to delude themselves about their tasks, they only have to delude the general public. They can think whatever they want, just keep their mouth shut and sing the tune of the administration.
8.27.2007 11:19am
JunkYardLawDog (mail):
Eila, nobody mentioned anything about delusions.

Securing the border under current law is definitely doable. Certainly a far far better job than has been done to date is quite doable. It does however require a commitment (desire) to secure the border and enforce current law, combined with a belief that the job can be done. There are many millions of people in this country who have the desire and the belief to get the job done under current law, naturally it would be better to have one of them give it a try than someone who neither has the desire or the belief to get the job done. Of course one big problem for any head of DHS is that Bush himself does not desire to secure the border and may not believe its possible to get it done.

Elia, you can go ahead and take Bush's side on this if you like, but for me I'm not on Bush's side. I think its a very doable job to secure the borders under current law, and it needs to be handled by somebody with both that same belief and the desire to make it happen.

Remember when Luke Skywalker said to Yoda "Its Impossible", and Yoda replied "and that is why you fail".

You've got to believe it to receive it.

Says the "Dog"
8.27.2007 12:37pm
Adeez (mail):
Chertoff should've been hanged immediately after making his recent "gut feeling" comment about another attack. Either he is complicit about another False Flag headed our way, or he thinks it's proper as one of the main "anti-terrorist" actors in the U.S. to scare the shit out of the citizenry w/no basis in fact whatsoever. Neither is acceptable.

And Dog: "Remember when Luke Skywalker said to Yoda 'Its Impossible,' and Yoda replied 'and that is why you fail.'": Great quote. I feel the same way about peace, and I'm glad you agree.
8.27.2007 12:46pm
OrinKerr:
JYLD,

Okay, so how would you do it? I mean, after you "believe," how do you actually make it a reality? Imagine you are made the new AG. What's the plan? How many people do you need, and how many resources?
8.27.2007 12:50pm
OrinKerr:
JYLD,

I have to add one more thought: I did actually laugh out loud at your idea that anything is possible because Yoda says so.
8.27.2007 12:52pm
Ella:
Dog, you suggested that the mere statement that a given goal assigned to an official is impossible is evidence of the official's incompetence. I suggest that an appreciation for the feasibility or infeasibility of accomplishing those goals is actually a key indicator of competence. Perhaps if more government officials had shown such an appreciation for the feasibility of Bush, et al's rosy vision of happy Iraqis throwing rose petals at their "liberators" feet and embracing a functioning, America-friendly democracy within a few months of their dictator's overthrow, we wouldn't be where we are now. Hopeful ambition is one thing - willfully delusional ignorance is another.

But then, I'm a benighted reality-based thinker.
8.27.2007 1:01pm
Anderson (mail) (www):
Actually, I think Luke said "I don't believe it," to which Yoda's reply was "That is why you fail."

Of course, Luke did better ignoring Yoda's advice than following it, so I am not sure whether the Little Green Man is the ideal counsel.

Indeed, Yoda's traumatic experience with Darth Sidious seems to have left him somewhat of a neocon, insisting that Vader be defeated in battle and that he couldn't be turned from the Dark Side. Many of Yoda's quotes have a Cheney-esque quality to them.
8.27.2007 3:03pm
JunkYardLawDog (mail):
Orin,

I'm glad to know you read my posts and I'm glad the little Yoda line added for a little color and entertainment value gave you a laugh. However, your description of what I wrote that anything is possible because Yoda says so is a bridge too far for what I really wrote.

I'll try to explain what I wrote about you have to believe something can be done in order to get it done like this. All catholic Nuns are female, but not all females are catholic Nuns. So if someone wrote to be a Nun you have to be a female, then it would be incorrect to summarize that statement as all females are Nuns. Now going back to what I wrote which was you can't get something done unless you first believe you can get it done, is not the same thing as saying you can get anything and everything done so long as you believe it can be done (or because Yoda says so).

If you don't believe something can be done, then you've already given up and you won't work hard enough or make the right decisions to actually get the thing done as a result. It becomes a self fulfilling prophecy. That is not a mystical statement that anything can be done as long as you really believe it can be done. It is a very practical real world recognition that anything that anyone accomplishes that is hard to do is ultimately only done by those people who believed they could do it.

So an employee who publicly announces they can't do their job and don't know how to do their job, is an employee who is announcing they are incapable of doing or incompetent at doing their job, and therefore they are just going through the motions of doing their job without really trying to do it.

Says the "Dog"
8.27.2007 3:31pm
JunkYardLawDog (mail):
Orin, you asked what would I do if I were AG (I think you meant head of DHS and I will answer using that assumption).

As to your question regarding specific budgeting and resource allocations, I couldn't give specifics on that now. I would get Joe Arpaio and Tom Tancredo and few others like that to help develop such requirements and plans. I would revamp the resources of the border patrol and ICE towards enforcement at the border and in the workplace. I would make raids on large farms and perp walk the operators of these farms away on charges. I would make the heads of the large agri-businesses like Archer Daniel Midland do a perp walk out of their corporate headquarters for hiring illegals. I would start making arrests at construction sites, and landscaping sites, and places where illegals gather for these kinds of jobs. I would also arrest the owners of these small and medium sized construction companies and landscape companies. I would have the press tag along on these raids and arrests. I would set up tent cities on the border to handle detainees if necessary. I would get the president to assign 10,000 or 20,000 or 30,000 armed national guard or regular military troops to the border and give the power to arrest, stop, detain, and SHOOT BACK at those entering the country illegally. I would build the 770 miles of fence ASAP and not drag my feet on doing it like Chertoff.

Then I would ask for more money to build the rest of the fence from the pacific ocean to El Passo or so. Virtual fences only stop virtual people. I would seek punitive legislation to stop sanctuary cities. I would seek legislation making a city or state liable for damages when illegal aliens commit crimes after having been arrested and not reported to ICE for deportation. I wouldn't call people who want the border secured racists. I would fire as many of bureaucracy as necessary to get people who believe in the mission of securing in charge of running things in ICE and Border enforcement. I would seek legislation making it a misdemeanor not punishable by more than 6 months in jail to enter the country illegally so people picked up for being here illegally could be tried, WITHOUT COURT APPOINTED LAWYERS, before the equivalent of a bunch of brand new federal muni-courts where these people can have their cases disposed of quickly and without delay. Then they can serve their sentences in the federal tent cities on the border that I would get old Joe Arpaio to help me set up and run. If they have to spend 3 to 6 months in a tent without making money and without being able to send that money back to their families in Mexico it will be a real problem for them.

I would ask the President to send the General in charge of the 101st Airborne division to go to Mexico City and make it clear to the light skinned racists in charge of Mexico and who steal its wealth while sending the dark skinned Mexicans they refuse to educate and create jobs for to the USA, that they need to enforce the border from their side or we might just have to replace them with other Mexicans who will enforce the border from their side. I would have the general explain to these light skinned Mexican thieves that if they want to continue to be in a position to steal the wealth of Mexico for themselves that they need to rethink their racist policies and start building a whole lot of roads and schools for and by their poor native darker skinned population.

I'm sure I could think of a lot more once I got wound up on this.

Says the "Dog"
8.27.2007 3:53pm
Anderson (mail) (www):
I think Bush could get whoever he freakin' wanted for AG, if he set the confirmation hearings to run concurrent with JYLD's hearings on his DHS nomination.
8.27.2007 5:49pm
JunkYardLawDog (mail):
Anderson,

Wink; It is a fun thought. Confirmation hearings for JYLD. Schmucky Schumer would have a brain spasm and Leahy would go positively epileptic. Alas, JYLD could never be a public servant and would rather be the power behind the throne than the target who sits on the thrown.

Says the "Dog"
8.27.2007 9:18pm
OrinKerr:
JYLD,

I am familiar with the distinction between necessary and sufficient conditions. Thanks.

As for your proposal, I think the trick is that you would have to figure out a way to do that without a major increase in funding and without needing to get any controversial people into Senate-confirmed positions. As you know, the country is deeply divided on immigration: I think you have to assume that this will remain the case if you want to talk about realistic plans for success. Indeed, I agree with you that if the nation were united that would go a long way towards solving the problem; however, this can be said for most public policy problems. It sounds like your proposals presuppose that we are united as a nation on this issue, which obviously we are not.
8.28.2007 12:37am
David M. Nieporent (www):
As for your proposal, I think the trick is that you would have to figure out a way to do that without a major increase in funding and without needing to get any controversial people into Senate-confirmed positions.
He'd also have to obtain the power to summarily arrest people without probable cause, which might pose a few problems.
8.28.2007 8:04am
JunkYardLawDog (mail):
Orin, the pattern and types of arrests I mentioned can all be made under current law without confirmation hearings or congressional approval or approval of the 30% of the country that doesn't want better immigration enforcement. Its not true the country is divided 50/50 on this issue. The political parties are divided 50/50 but the people in the country are over 70% favor very tough crackdowns and border enforcement. The President could put those 10,000 to 30,000 fully armed troops with appropriate rules of engagement and deputized to make stops and arrests with the stroke of a pen. Again no senate confirmations or congressional approval required.

Your comments would apply to the new legislation I suggested, but just the above alone would go a long way to helping solve matters.

Says the "Dog"
8.28.2007 9:02am
Ron Mexico:
Orin,

I am surprised to see someone with your intellectual powers discussing complaicated policy issues with a silly child like the JYLD. You are a more tolerant man than I.

Ron
8.28.2007 9:11pm