Should Gonzales Go?

“Albert Gonzales Is Spanish for David Souter” was a laugh-line heard and repeated frequently at meeting of the Federalist Society two years ago.  That was a reference to the rumors of the time that President Bush would name Atty. Gen. Alberto Gonzales to a vacancy on the Supreme Court.  Given Gonzales’ relatively small “paper trail” as White House Counsel and a justice of the Texas Supreme Court, members of the conservative legal group feared, a “Mr. Justice Gonzales” could well turn out to like another member of the high court whose background gave no clue as to how he would disappoint conservatives.

Gonzales never made it to the Supreme Court.  These days, the nation’s top lawman is under even more fire from Democrats on Capitol Hill for the firing of eight U.S. Attorneys than he was two years ago from conservatives when his name surfaced as a candidate for the Supreme Court.  The two cases of a “pile-up” on Gonzales are not mutually exclusive; where many conservatives strongly believe that the White House should not “push someone off the sled” because Democrats clamor for him, there is very little evidence that they feel this way when the official under fire is Gonzales — who has never been trusted by conservatives and has done little to assuage the doubts they had about him when he was considered for the high court.

Thus, as one conservative Republican senator told me two weeks ago about a closed-door meeting of the Senate Republican Conference: “The feeling among us was that he [Gonzales] should go.”  This sentiment, the senator explained, had little to do with the furor over the U.S. attorneys’ firing; most pundits and pols blamed Gonzales’ understudy, Deputy Atty. Gen. Paul McNulty, for igniting the entire controversy when he testified before the Senate that the firings were “performance-related.”  This prompted several of them to go to the press and cite their excellent performance evaluations.

No, the sentiment that Gonzales should go that the senator (who requested anonymity) spoke of have nothing to do with the recent firings.  Gonzales has done so many other things to anger conservatives that the current controversy, it appears, is just a convenient reason to call for him to resign.

Many conservatives burrowed within the Department of Justice have long complained that Gonzales has permitted career government employees and hold-overs from Democratic Administrations to remain in perches of power and thereby water down conservative directives from the top.  As one conservative and Federalist Society member in the Justice Department told me: “This is definitely not Ronald Reagan’s Justice Department, I assure you.  You have holdovers from Clinton calling the shots in a lot of places here.”  He particularly cited the environmental division as a hotbed for holdovers.

In terms of high-level prosecutions, Gonzales has raised eyebrows among conservatives more for what he hasn’t done than for what he has.  It took a long time for the Justice Department to launch the prosecution of former Clinton National Security Adviser Sandy Berger for taking classified documents home from the 9/11 Commission hearings and then the prosecution ended in plea bargain and fine for Berger.  Months after Rep. William Jefferson was found with $90,000 in cash in his refrigerator at home following FBI raids on his office and home, there is still no sign when the Justice Department will prosecute the Louisiana Democrat on corruption charges.  

There is also no sign that Gonzales’ department will go after government employees and office-holders who leak classified information.  After the country was subjected to the Plame leak investigation and the subsequent trial of I. Lewis “Scooter” Libby, it’s only fair to ask why other leak cases have never been brought. The seriousness of the Plame leak is, at best, questionable.  But why hasn’t the Gonzales Justice Department investigated and prosecuted the leakers of the NSA terrorist surveillance program, the CIA secret prisons and the disruption of terrorist financing through the Belgian “SWIFT” consortium?  

After the New York Times ran a front-page story last year on the top secret National Security Agency program, some news stories pointed fingers at Sen. Jay Rockefeller (D.-W.Va.) as a possible leaker; when Sen. Richard Durbin was accused of disclosing classified information after CIA Director George Tenet briefed the Senate Select Committee on Intellilgence in ’03, the Illinois Democrat took to the Senate floor to heatedly deny the accusation.

But, as Jim Kouri, a vice president of the National Association of Chiefs of Police wrote last year, “[D]on’t expect too much to come from these leak investigations.  When the leakers are Democrats, they are called whistleblowers; when they’re Republicans, they’re called leakers.”

“Terrible for border security” is how Phil Kent of Americans for Immigration Control deems Gonzales watch at Justice.  He cited an address Gonzales made in March of ’05 to the National Council of La Raza, a vigorous open-borders group, in which he said “I have this organization to thank for support of my nomination for attorney general.”  

Cecilia Munoz, vice president for policy at La Raza, told the Washington Post:  “Many people were not aware of Judge Gonzales’ long history with our affiliates in Texas, and moving then-Gov. bush to the right posture, from our perspective, on key civil rights issues like anti-English only requirements, like anti-immigrant ballot initiatives, bilingual education, and affirmative action.”

As Kent recalled, “When Gonzales met with [then] Mexican President Vicente Fox this past spring, there was no discussion — let alone a public response from Gonzales — concerning media reports of Mexican military units guarding truckloads of drugs coming into the U.S. or the extradition of Mexican murderers or drug smugglers.”  

Regarding the current U.S. attorneys’ furor, Kent simply said:  “Gonzales should have instructed all of his U.S. attorneys, from Day One, to vigorously prosecute employers who knowingly hire illegal immigrants.”

But another issue comes of this.  When Senate Democrats began objecting to the firings, Gonzales told them that neither he nor the White House would object to legislation that took the power to appoint interim U.S. attorneys away from the Executive Branch and vested it in a judge. This position seems Constitutionally ignorant, as the U.S. attorneys are Executive Branch appointees and judges aren’t part of the Executive Branch.

To be sure, Gonzales does get some praise from conservatives for his role in crafting the Patriot Act and the Military Commissions Act of 2006, which apparently enhances the hand of the Administration in interrogation of al Qaeda prisoners.  But praise on these fronts is clearly drowned out because of the attorney general’s handling of personnel matters, national security prosections and borders security.  The U.S. attorneys’ affair is actually non-germaine to the complaints from conservatives. For other reasons, as the Republican senator told me, “he should go.”