This column originally appeared in the Washington Times on April 12, 2007
No one doubts that Congress has the right, if not the obligation, to inquire into malfeasance by the executive branch. But the current campaign against Attorney General Alberto Gonzales reeks of the very political infection it purports to deplore.
It’s not that Mr. Gonzales’ congressional foes have forgotten to pretend to be high-minded. They acknowledge, albeit as quietly as possible, that U.S. attorneys are political appointees to be chosen, and removed, at the president’s pleasure. They also acknowledge that President Clinton fired all 93 sitting U.S. attorneys shortly after he took office, for little or no reason except that they had been appointed by a Republican. They say, however, that what makes the firing of the eight U.S. attorneys different in this instance is that they got the ax because they were not “loyal Bushies.”
The problem – or at least the first problem – is that this is no difference at all: Mr. Clinton’s firing of more than 10 times the number of prosecutors was undertaken precisely because they were not “loyal Clintonites.”
Mr. Gonzales’ enemies have seized upon the notion that one or more of the former U.S. attorneys was fired because he was prosecuting Republicans or failing to gin up prosecutions against Democrats. And if that were the case, it would in fact be a scandal. Indeed, it would be even worse than firing the career employees in the White House Travel Office simply to make way for political cronies. So the real motive for the Gonzales hunt becomes clear — create enough smoke to convince the public there’s fire in the Justice Department.
How can the senators so indignant about a “scandal” redeem themselves? First, they could actually behave as if the Constitution created co-equal branches of government, in which the legislature’s prerogatives are roughly in balance with those of the executive. This would require them to admit it is they rather than the administration who want to write a “blank check” along with the next several hundred subpoenas. It would then require them to seek a compromise that will preserve both branches’ authority — and, usefully, avert a constitutional showdown.
Second, they could ask of themselves what they ask of others. The U.S. attorney hearings are held, we are told, in the name of accountability and openness in government. If so, it should not be just administration aides who are required to take the oath before speaking. It should also be those asking the questions. To any extent the accusations against the attorney general purport to be based in truth, those making them ought to do so with the same guarantee of trustworthiness. Authentic accountability cannot reside on but one side of the witness table.
Finally, the senators so loudly decrying the influence of politics in selecting U.S. attorneys should come clean about what every one of them knows full well. The unspoken little secret is that senators are up to their ears in the selection process, and politics is present every step of the way. Although U.S. attorneys are technically appointed by the president, in fact the great majority of them hold their positions because they are urged on the White House by – guess who – senators.
If openness in government and candor about Justice Department appointments are what this is all about, let the braying senators disclose all their contacts with both the Bush and Clinton administrations concerning the selection of U.S. attorneys. Until they do, these hearings have no hope of achieving an honest accounting of anything.
William Otis is director for legal affairs of the American Civil Rights Union. He is a former federal prosecutor under administrations of both parties and a former special White House counsel for President George H.W. Bush.
The Washington Times