Easy Act to Follow

As President Bush thinks about replacing AGAG, he needs to find someone of unimpeachable stature, who could get 90 votes in the Senate without breathing hard and who'd run the Department in a way that would make everyone proud.

It's so obvious. But will he do it? If past performance is any indicator of future results, in the end he'll choose someone who'll just be even more controversial and who'll have us yearning for the old days of Ashcroft and Gonzales.

It's a comfort to read that, for once, Bush is at least trying to think about finding a highly qualified candidate. But we'll see if he can come up with one who'd be willing to take the job.

Gonzales and Reality

You know things are getting bad when you need a chart to keep track of the misstatements (or, to put it less politely, lies) the Attorney General is accused of. It's hardly the first time we've had reason to question the candor of Alberto Gonzales (does anyone else think of him as "A.G. A.G.," by the way?), but things are getting out of hand.

The latest news is that a credible source -- well, it's only the Director of the F.B.I. -- contradicts (or, as CNN delicately puts it, "appears to contradict") A.G. A.G.'s account of the infamous night visit to John Ashcroft's hospital room. Gonzales says he wasn't there to talk about the terrorist surveillance program; Mueller says he was. But maybe there are two programs? Could they each be using codespeak for something slightly different?

If Gonzales was a pillar of the community with outstanding credibility, this could all be shrugged off as a misunderstanding. The problem is that he's made so many questionable statements that one hesitates to give him the benefit of the doubt. Senator Leahy has sagely given Gonzales a week to "amend" his testimony. A.G. A.G. should take this last chance to set the record straight.

This Afternoon

I've been imagining that my feeling that it would be best to close our extraordinary prison in Guantanamo Bay just reflects my profound ignorance of military and international security matters. Sure, it seems from my naive, uninformed viewpoint that, even assuming we put aside all questions about legality and just ruthlessly follow our national interests, Guantanamo's negative impact on our national values and international standing outweigh whatever advantage we get from keeping people we regard as terrorists or enemy combatants in a law-free, judge-proof, indefinite limbo. But what do I know? An important part of being a professor and a scholar is recognizing and admitting the limits of one's knowledge and information. I'm not in a good position to assess what Guantanamo is doing for us security-wise, and, for all I know, it really is helping a lot, maybe even so much that we should accept the negative consequences.

That's why I was so interested to see that Colin Powell says that if he were in charge he would close Guantanamo "this afternoon." Powell is in a position to weigh the costs and benefits of Guantanamo -- he's probably the most qualified person around. He's been a General, the National Security Advisor, Chairman of the Joint Chiefs of Staff, and Secretary of State. If there's someone who's in a better position to assess how Guantanamo is helping and hurting us with regard to our military, national security, and diplomatic needs, and to weigh these all up against each other, I'd like to know who it is. And he says he would close Guantanamo because it has become a major problem in "the way the world perceives America."

So maybe the liberals are right after all. Getting your way internationally is not just a matter of flexing your military muscles in every super-macho way you want. Paying a little attention to diplomacy and international law actually helps too. It's not just me saying this, it's Colin Powell.

And while we're at it, here are a few other things the President could do this afternoon:

• Fire Alberto Gonzales and install an Attorney General who will enforce the laws honestly and impartially.
• Fire Lurita Doan and instruct all appointees who serve at his pleasure that government departments are not to be politicized.
• Admit that if we knew then what we know now, we would not have invaded Iraq.
• Apologize for his role in taking the nation into war based on incorrect information.
• Say that, however mistaken going into Iraq may have been in the first place, we're there now and we have to deal with the situation, come up with a truly credible plan for making Iraq succeed in a plausible time frame even though it will require sacrifices, and then implement the plan.

I know it's a little late in the Bush presidency and people are saying he's in his lame duck period, but wouldn't it be quite a jump-start if he admitted his past errors, swept the slate clean, and tried to do the right thing from here on out?

No Confidence, Part II

So the Senate failed to invoke cloture on a vote of no confidence in Attorney General Alberto Gonzales. As I explained yesterday, such a measure would have been a perfectly appropriate way to ratchet up the political pressure on the President to fire the embattled Attorney General -- the Senate has every right to express its view on this important question without incurring the time and costs of an impeachment proceeding.

But OK, it didn't work. And not only that, but the Republicans seem to have won the media debate, successfully painting the no-confidence vote as some weird British thing that doesn't belong in our system. The Democrats learn once again that if you're going to try to turn the political screws, you have to do it right. Now they just look ineffectual, which is their negative stereotype. You can't let the other side make you look like your stereotype.

So what next? The answer is that cabinet officers are impeachable. It's a rare thing for a cabinet officer actually to get impeached (it's only happened once, I believe), but that's only because, if a cabinet official gets into impeachable trouble, there's usually so much political pressure for him to resign or for the President to fire him that impeachment usually becomes unnecessary. In this case, a President known for his unusual stubbornness and the A.G. are sticking to their guns. So it's time for Congress to haul out the heavy ammo.

Has Gonzales committed an impeachable offense? The impeachment clause of the Constitution states that "The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." So one might think that Congress needs to prove that the Attorney General has committed some high crimes and misdemeanors in order for him to be impeachable.

There are two answers to that. First of all, it seems as though there is a good chance that he did commit high crimes in the literal sense. One strongly suspects that some of his statements to Congress about the U.S. Attorney scandal have been outright lies -- such as his claims that he can barely remember anything that happened. And the Justice Department itself seems to have concluded that he was breaking the law in connection with the domestic wiretapping program (although he wasn't Attorney General at the time).

But even more important, it's not clear that an impeachable offense has to be an actual violation of criminal law. Professor Michael Dorf of Columbia suggests that policy disagreement is not a basis for impeachment, which seems right enough, but he also points out that malfeasance in office, whether or not literally a "crime," may sufficiently be an impeachable "high Crime." Senators have agreed.

After all, to use an example that I believe comes from Judge Posner, suppose the President didn't commit any crimes, but simply left the country, moved to the French Riveria, and lived splendidly on his $400,000 salary while doing no presidential work? And made clear that he intended to continue doing that throughout his term? It seems hard to believe that the country would have no mechanism for removing the President from office in such a case.

So I would say that Gonzales could be impeached for malfeasance in office. The charges would have to go beyond mere policy disagreement, but things such as violation of civil service laws by making politics a criterion for hiring career staff would qualify as an impeachable offense even if it is not literally a crime. Gonzales is impeachable.

No Confidence

The Senate is scheduled to consider a vote of "no confidence" in Attorney General Alberto Gonzales. Apparently the one-sentence bill is unlikely even to survive a test vote.

Pity. Here are a few thoughts about this no-confidence vote.

It's perfectly appropriate for the Senate to express its "sense" that it (and the American people) have lost confidence in the Attorney General. The expression would be nonbinding, of course, it wouldn't have any legal effect (and still wouldn't even if the House of Representatives adopted its similar measure), but the Senate is as entitled as anyone else to express its opinion on the important question of whether the Attorney General is doing a suitable job.

Alberto Gonzales eminently deserves an expression of lack of confidence, for the U.S. Attorney scandal, among other reasons. It's become clear, even if mainly by negative inference, that the U.S. Attorneys were fired for improper reasons. If there were proper reasons, we would know them by now, instead of having a comically absurd series of evasions, failures to recollect, pointing of fingers, and stonewalling as to how and why the fired U.S. Attorneys got on the list to be fired. And it's been openly admitted that the Department engaged in political hiring of career staff. And Gonzales was so eager to violate our rights that he went to John Ashcroft's hospital bed to try to get him to authorize illegal wiretaps while in the fog of illness. One can't have confidence in this man to be the nation's chief law enforcer.

The President and other Republicans are charging that the no-confidence vote is just a piece of cheap political theater. There's no doubt that it has some element of grandstanding. The vote won't actually have any legal effect. The Democrats are obviously trying to embarrass Senate Republicans by forcing them to vote on this measure (and why not? The Republicans were masters at bringing up embarrassing votes when they controlled Congress).

But still, the measure is appropriate. The alternative would be for the House to impeach Gonzales and the Senate to remove him. And frankly, that would be an even better idea than this no-confidence vote (more on that tomorrow). But impeachment would be time consuming and cumbersome. It would distract Congress from other important business. It might well be the best solution, but one can't always have the best. There are cost-benefit tradeoffs in this matter, as in all matters.

The House and Senate have every right to desire a cabinet official to go once they have lost confidence in him. They also have every right to try to make it happen as cheaply, efficiently, and painlessly as possible. The no-confidence vote is an appropriate way to tell the President that he really should get rid of the Attorney General. If it succeeds in ratcheting up the political pressure on the President to dump Gonzales without incurring all the costs and burdens of an impeachment proceeding, that's a good thing. Political jockeying between Congress and the President is appropriate, and avoiding heavy administrative costs is desirable.

Of course, the President has every right to resist if he wants to, until Congress takes the action that would really have legal effect -- impeachment and removal. It's all a question of how much political pressure Congress can bring to bear. But it's wrong to dismiss, as "political theater," perfectly appropriate attempts to put political pressure on the President.

Cheney in the Loop

James Comey's latest disclosures show that Vice President Cheney was personally involved in the tussle between the White House and the Justice Department over secret surveillance. Cheney told Justice Department officials that he disagreed with their objections to the surveillance program and he later blocked the promotion of a DOJ official because of his role in refusing the certify the program's legality.

Now, as with the U.S. Attorney firing scandal, there are two ways to view this. On the one hand, there's nothing wrong with the White House giving direction to the Justice Department. Senator Schumer said "Mr. Comey has confirmed what we suspected for a while -- that White House hands guided Justice Department business," as though there were something inherently sinister about it. But why would there be? The Attorney General works for the President. A boss is allowed to give orders; that's part of being the boss. So just as the White House is correct to point out that U.S. Attorneys serve at the pleasure of the President and it's appropriate for the President to set their priorities, so too can the President (or the Vice President, if delegated authority from the President) give direction to the Department of Justice.

But, again, as with the U.S. Attorney scandal, the President's authority can be used in legitimate or illegitimate ways. The President can set priorities for U.S. Attorneys, but he can't tell them to bring meritless prosecutions just to harass members of the opposition party. Similarly, it's perfectly appropriate for the President to set priorities for the overall Department of Justice, but the President (or Vice President) leaned on the Justice Department to certify as legal a program that is illegal, then you have a scandal.

Which do we have here? Well, if White House officials were just setting legitimate priorities and giving legitimate direction, would they have (a) accepted the Justice Department's decision that the surveillance program was illegal, (b) explained their difference of opinion and asked the Justice Department to consider their arguments, or (c) gone to the hospital room of the temporarily out of power Attorney General in the dead of night and tried to get him to overrule the decision of the Acting Attorney General while he might be too ill to think straight?

Bad Goodling!

Monica Goodling didn't provide all that much new information on the U.S. Attorney scandal in her testimony yesterday, but she did say that she crossed the line by considering the political affiliations of applicants for career Department jobs, including prosecutors and immigration judges. She was unable to say whether this happened more or fewer than 50 times. She even looked up political donations made by job applicants.

The U.S. Attorney firing scandal has been a tangled web of ambiguity, but this point is crystal clear: it's outrageous. I put in four years at the Justice Department as a career attorney, and we had a proud tradition of nonpolitical hiring. The career staff was majority Democrat, because Democrats are more drawn toward public service whereas Republicans tend to prefer private sector work, but we didn't think about political affiliation when it came to hiring and the office reflected a wide variety of ideological views.

Political hiring is not only outrageous, it's unnecessary. The career staff did what the political staff wanted. Oh, I suppose most of us wouldn't have lied or committed other professional misconduct for the bosses, but they told us what the legal position of the government was, and we deployed our talents defending it. Sometimes we would tell them their position was a loser, but then it was up to them to decide whether to go with it anyway. (You're allowed to argue a likely losing position so long as it's not so outrageous that no reasonable person could believe it.)

Sadly, the political staff never fully trusted us, whether they were Republicans or Democrats. I started in the Administration of Bush the Elder and continued into the Clinton Administration, and there was always some tension between the political and the career people. But the political people never tried to force us to hire only Republicans or only Democrats, until the current Bush came to office. It's disgraceful.

As if that weren't bad enough, it seems that there was also a strong bias in favor of hiring attorney's from Regent Law School, a fourth-tier, Christian school founded by Pat Robertson. So they were discriminating not only by ideology, but by religion too.

So there's less and less doubt that scandal was rife at the once-proud Justice Department. And we still don't know how the fired U.S. Attorneys were selected for firing. As I've said before, it's high time to draw a negative inference. If there were an appropriate, non-scandalous reason these attorneys were fired, we'd have heard it by now. But no one can tell us the reason, other than that it was the "consensus of the senior leadership." Apparently the list just dropped from Heaven, one might say. Obviously, the implication is that the list was prepared for improper reasons -- it now seems most likely that the fired attorneys were fired for refusing to prosecute Democrats without cause.

Now There Are Five

Chuck Hagel becomes the fifth Republican Senator to call for Attorney General Alberto Gonzales's resignation. The U.S. Attorney firing scandal was bad enough, but the stunning story of Gonzales's nighttime visit to John Ashcroft's sickbed seems to have put Hagel over the top.

I don't see how Gonzales can hang on much longer. Last week he was telling people he had "weathered the storm," but the revelation that, as White House Counsel, he was so eager to violate our rights that he tried to take advantage of a man in the ICU is really too much. It should give new impetus to the push to get him out.

Meanwhile, it is reported that Paul Wolfowitz may "soon" resign as World Bank President(although the lede in other papers is that he's clinging to his post).

There's nothing like an opposition Congress to shine some light into the dark corners of the administration. So long as the Dems didn't even have one house of Congress, they really had nothing. But with the power to conduct investigations and issue subpoenas, we're finally finding out at least something about just how bad things are in our government.

Shameless

Who's running the Department of Justice? A man who was so eager to get reauthorization for a wiretapping program that the Department had determined was illegal that he went to the hospital room of ailing Attorney General John Ashcroft to try to get him to overrule the decision of his Deputy (and Acting Attorney General) James Comey.

The Ashcroft Justice Department was not exactly known for its respect for legal niceties. Let's not forget that this same Department issued the infamous 2002 "torture memo" that not only provided the narrowest possible definition of "torture" ("intense pain or suffering . . . equivalent to the pain . . . associated with . . . death, organ failure, or permanent damage resulting in a loss of significant body function") but also, incredibly, suggested that the anti-torture statute unconstitutionally infringed on the President's Commander-in-Chief power without even mentioning Congress's military powers in its analysis. These guys would say anything to justify what the President wanted. When they conclude that your wiretapping program is illegal, you'd better listen.

Instead of listening, Alberto Gonzales, then White House Counsel, went to John Ashcroft's hospital room. Ashcroft had been hospitalilzed with gallstone pancreatitis and was in GWU Hopsital's ICU, and he had transferred the powers of the Attorney General to his deputy, Comey. The two had agreed that they could not certify the wiretapping program's legality. When Comey told the White House, Gonzales and White House Chief of Staff Andy Card went to Ashcroft's hospital bed with legal papers.

Bless Ashcroft's ailing heart. I never had much respect for him, but in this supreme crisis, when he was so ill he was in the intensive care unit, he not only turned down the White House Counsel and Chief of Staff and explained why they were wrong, but pointed at Comey and said, "But that doesn't matter, because I'm not the attorney general. There is the attorney general." Gonzales and Card left and Card later claimed that they had just been there to wish Ashcroft well!

It's hard to think of anything so shameless since Newt Gingrich went to his wife's hospital bed to work on their divorce.

And Alberto Gonzales, the man who was so eager to violate our rights that he went to the hospital to try to get an ailing Ashcroft to overrule his Deputy and Office of Legal Counsel, is now Attorney General of the United States. No wonder the whole Department is on life support.