Ridiculous Process, Right Decision?

The worst thing about Alberto Gonzales’ testimony this week before the Senate Judiciary Committee is that I have no doubt that he was telling the truth. Eight U.S. attorneys got fired and he couldn’t recall very much about it because he didn’t have much to do with it.

He relied on his young political deputies; they had gone as far as they could to satisfy the White House, and that was enough. He didn’t ask what those being fired had done wrong because that wasn’t really the issue: It was politics, stupid.

And the most amazing part is that Gonzales still doesn’t seem to understand what’s so wrong with that.

Oh, sure, he was happy to admit that mistakes were made, that he should have paid more attention, maybe made a few calls himself, at least to the people he was firing. He should have relied more on the career types and less on his political whiz kids.

Even so, according to the attorney general, a totally flawed and misguided process that he can’t even remember miraculously managed to produce exactly the right result. He would make the same decision again. Ridiculous process, right decision? Not likely.

Like all Cabinet members, Gonzales is a political appointee, and so are the U.S. attorneys who work for him. He wouldn’t have his job unless he had a relationship of some sort with the president, and neither would they. But unlike other appointees, serving the president is not his only job.

Because of the enormous power they wield over life and liberty (think Mike Nifong in Durham), lawyers like me treasure the notion that prosecutors are not supposed to take politics into account once they’re in the job and exercising their discretion.

That doesn’t mean they are free to ignore the policy priorities of the president who appointed them, any more than locally elected district attorneys can afford to turn their backs on the concerns of the community that elected them. But if the decision of what crimes to prosecute may be political, the decision of whom to prosecute for them should never be.

The essence of politics is helping your friends and sticking it to your enemies. That’s the standard by which political effectiveness is measured. Loyalty means staying with your team even when the leader is wrong; sticking with the man when he’s right, after all, is just good judgment.

These rules of politics have no place either in making prosecutorial decisions or in reviewing the performance of the men and women charged with making them. The attorney general’s job is to protect his prosecutors from improper political influence, not apply it himself or empower his political deputies to do so.

The Kyle Sampsons and Monica Goodings of the world, young political operatives with absolutely no background or experience in criminal law, have no business being involved in the evaluations of U.S. attorneys, much less running the process that leads to their dismissal if they are found to be less than “loyal Bushies,” to quote Mr. Sampson’s standard.

Because he serves at the pleasure of the president, Judge Gonzales still has his job. Maybe George Bush will reward his old friend’s loyalty by ignoring the polls and pressure and keeping him in place. Sticking with people even when they’re wrong is one of George Bush’s strong suits. But there are limits to the role loyalty should play in politics.

The War on Terror has given the attorney general greater powers over Americans’ lives than ever before. It has raised the stakes on the judgment of the man who holds it, particularly with this administration pushing the limits of the law in terms of permissible surveillance, the need for judicial review and the powers of the executive branch.

It underscores the issue of whether this attorney general puts too high a priority on pleasing the president at the expense of the rule of law.

While a quarter of all Americans told the latest Gallup poll that they didn’t know enough about the attorney general to judge his handling of the job, among those who had opinions, disapproval was carrying the day by a 2-to-1 margin. That’s bad. It’s not just bad politics for the president, another blow for a guy whose baggage keeps getting heavier, but it’s bad for the country.

If you don’t have confidence in the attorney general, how can you have confidence in the fairness of the rule of law?

The issue here is loyalty, and when it shouldn’t matter. Loyalty is the wrong reason to fire a federal prosecutor and the wrong reason to keep an attorney general who has lost the confidence of everyone but his boss.

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Susan Estrich is the Robert Kingsley Professor of Law and Political Science at the University of Southern California. She was Professor of Law at Harvard Law School and the first woman President of the Harvard Law Review. She is a columnist for Creators Syndicate and has written for USA Today and the Los Angeles Times.

Estrich's books include the just published “Soulless,” “The Case for Hillary Clinton,” “How to Get Into Law School,” “Sex & Power,” “Real Rape,” “Getting Away with Murder: How Politics Is Destroying the Criminal Justice System” and "Making the Case for Yourself: A Diet Book for Smart Women.”

She served as campaign manager for Michael Dukakis' presidential bid, becoming the first woman to head a U.S. presidential campaign. Estrich appears regularly on the FOX News Channel, in addition to writing the “Blue Streak” column for FOXNews.com.

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