If government service were an Outward Bound experience, Alberto Gonzales would be the hands-down winner.
The fact that he has survived this long, that he is still there notwithstanding the drip-drip of bad news about his management of the DOJ, is a testament to the man’s endurance skills, not to mention the too often blind loyalty of his boss in the large White House.
But enough is enough. The fact that the president and Attorney General Gonzales have the kind of freedom-- to borrow from Janis Joplin--defined by “nothing left to lose” doesn’t mean that the continued tenure of the embattled attorney general, and the desperate machinations necessary to save him, aren’t taking a toll not only on the department he leads, but on the rule of law.
It now appears that Mr. Gonzales once again mislead Congress about what he knew and when he knew it-- in this case on the subject of FBI abuses of the powers granted by the Patriot Act. Those of us who cherish the notion of civil liberties have reason to worry even when the Patriot Act isn’t being abused, much less when it is. The details have yet to emerge fully, but what is known is that the attorney general received a report attesting to numerous abuses prior to reassuring Congress that he knew of none. That this makes it impossible for Congress to exercise its oversight functions, much less to legislate intelligently, is manifest.
Which makes all the more troubling the White House’s decision, also this week, to challenge Congress’ right to investigate whether the Department of Justice acted improperly in the firing of seven United States attorneys. In a letter from the White House counsel, released on Monday, the president asserted that he was claiming “executive privilege” in instructing his staff not to comply with duly issued subpoenas for the testimony of former White House counsel Harriet Meiers and deputy political director Sara Taylor.
“Executive privilege,” a concept nowhere mentioned in the Constitution, is essentially a presidential right to privacy. The idea is that presidents have a right to receive the advice and counsel of their staff on a confidential basis, and to keep it confidential, free from the inquiring eyes of other branches of government, even when the others are doing their constitutional jobs.
It’s always amusing to me to watch conservatives who huff and puff against a woman’s right to privacy, protected in Roe v. Wade as well as in decisions about contraception, and against gays’ right to privacy, protected by the invalidation of sodomy laws, rush in to protect the presidential right to privacy embodied in the concept of executive privilege.
None of these rights, of course, are spelled out in the Constitution; they emnate from the structure of government, and the “penumbra,” as the Court put it, of the Bill of Rights. By the conservative calculation, penumbras are apparently available only to the president, not to the people.
But in this case, the invocation of executive privilege is not only hypocritical, but also fundamentally illogical. The White House has repeatedly claimed that the president had absolutely nothing to do with the decision to fire those United States attorneys who were not, in the words of AG Gonzales’s former chief of staff, Kyle Sampson, “loyal Bushies.”
Unless the White House is simply lying, he had no role in what appears to be an unprecedented politicization of the Department of Justice. If that’s true, how can he claim that his right to receive confidential information from his aides is somehow compromised by forcing them to testify before Congress about conversations and messages which the president neither heard nor saw?
If Richard Nixon couldn’t keep secret conversations in which he himself was intimately involved, as the Supreme Court ruled in United States v. Nixon, why should George W. Bush be able to keep secret conversations in rooms he wasn’t in, and emails he never read or knew about?
Of course, one can argue, as the Clinton administration did, that executive privilege should apply not only to conversations that aides have with the president, but those that they have with each other. But when the issue was discussions about the president’s relationship with Monica Lewinsky--hardly a matter as essential to the future of the rule of law as the firing of United States Attorneys--some of whom were involved in politically sensitive investigations at the time they were found wanting, conservatives were utterly unpersuaded by the argument for a broader definition of the president’s privacy rights, as was the district court that ruled that Clinton’s aides were required to testify.
The only other difference is that the Clinton case involved a special prosecutor on a frolic and detour from his fundamental mission, while this one involves Congress engaged in the appropriate exercise of oversight. Even if you take the position that prosecutors investigating potential crimes deserve more access to evidence than Congress investigating the potential abuse of power, it’s hard to argue with a straight face that l’affaire Lewinsky deserved a more thorough examination than the politicization of the Justice Department.
What’s more, the administration’s offer to allow these aides to testify privately off the record, as opposed to publicly under oath, far from strengthening the president’s hand, only makes the resort to executive privilege appear more suspect. If they have nothing to hide, why try so hard to keep their testimony hidden? If they have something to hide, all the more reason to require them to come clean.
Ultimately, the resolution of this issue is more likely to be determined by politics than law. The legal road for a Congressional challenge of executive privilege is long and bumpy. The next step would be for Congress to vote a contempt citation for the aides who refuse to testify, which would then be referred to the local United States Attorney (if he doesn’t get replaced too) for prosecution.
Assuming the United States Attorney for the District of Columbia chose to bring charges for the misdemeanor of contempt, executive privilege could be raised as a defense, initially for the jury to consider, and ultimately for the courts to review in the event of a conviction. Obviously, there’s nothing speedy about that process.
Political verdicts tend to be reached more quickly. The last thing this president needs, at a time when support for the Iraq war is reaching all-time lows and Republican Senators are defecting from the president on a daily basis, is to be engaged in a war with Congress that makes it look like he has more to hide.
Loyalty in politics is generally a one way street, running from appointees to the boss, and not the other way around. George Bush has been loyal to a fault to his people, including Alberto Gonzales. It is time for Gonzales to return the favor, to the president and the nation, by resigning.
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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.