While the political world obsesses over whether Attorney General Alberto Gonzales can survive the outcry over the politically motivated dismissal of eight United States Attorneys, the legal academy has been debating a different aspect of the fallout:
Could a case be made that the chief law-enforcement officer of the United States should be disbarred?
The question has emerged in the wake of what many consider to be damaging testimony by Monica Goodling, Mr. Gonzales’ senior counselor and the Justice Department’s White House liaison, before the House Judiciary Committee on May 23.
Ms. Goodling described a meeting in March where Mr. Gonzales said to her: “Let me tell you what I can remember,” and “laid out his general recollection” that the firings of the prosecutors had been performance-related. At his own appearance before the Senate Judiciary Committee in April, Mr. Gonzales told the panel that “I haven’t talked to witnesses because of the fact that I haven’t wanted to interfere with this investigation and department investigations.”
“It depends crucially on what the facts are,” said David Luban, a professor at the Georgetown University Law Center. “Given the most unfavorable interpretation, there’s clearly a case for disbarment.”
Bar-association rules, which are established by state associations—Mr. Gonzales is licensed in the state of Texas in addition to being admitted to the Supreme Court bar—typically forbid “conduct that involves deceit, fraud or misrepresentation.” There are also various means of censuring lawyers for bad behavior that fall short of disbarment, such as a public reprimand.
“Lawyers are not allowed to lie,” said Nancy Rapoport, an ethics expert and the former dean of the University of Houston Law Center. “That one, everyone agrees on.”
Geoffrey Hazard Jr., a legal ethicist who teaches at the University of Pennsylvania Law School, said that Mr. Gonzales’ faulty memory raises questions, but that the professional consequences remain uncertain. “She said she was there at a meeting he was there at talking about this subject,” said Mr. Hazard, referring to Ms. Goodling. “He says he doesn’t recall. A lot of people would think it’s just not possible not to recall that. If you say it’s not possible not to recall, then the inference is that his statement was not truthful. Like saying you don’t remember being at your birthday party last fall.”
Of course, as nearly all of the experts interviewed for this article pointed out, it is entirely possible that the impact of Ms. Goodling’s testimony will be political, but not legal.
“The fact that Goodling recollects differently from Gonzales—who has himself been vague and inconsistent—does not create a perjury prosecution of either of them,” Stephen Gillers, a legal ethicist at N.Y.U. Law School, wrote in an e-mail. “People recall differently. Until we learn more—if we learn more—it would not be responsible to say that inconsistency means Gonzales committed perjury.”
The experts also varied in their opinions on whether his home-state bar association might ever be moved by a formal complaint by a fellow attorney—a necessary step towards disbarment—to act against Mr. Gonzales, who was a board director for the State Bar of Texas from 1991 to 1994.
“The state-bar associations are never going to take the lead unless Congress does something,” said Charles Silver, a law professor at the University of Texas at Austin. “It’s not like it was with President Clinton.”
(Because he lied when testifying about the Monica Lewinsky affair, Mr. Clinton’s Arkansas law license was suspended for five years from the time he stepped down as President.)
“A lot depends on how things play out,” said Mr. Silver.
“It’s possible—I don’t think it’s probable,” said Ms. Rapoport. “Any lawyer is allowed to rat on another lawyer for a serious violation of the ethics rules. But you have to know that the person did it. You know how lawyers get about knowing: ‘I have a belief that he might have, but I don’t really know.’”
For now, Mr. Gonzales isn’t conceding any wrongdoing.
“After several hours of testimony last week by Monica Goodling, more than 6,800 pages and an additional 1,500 pages made available to Congress, two extensive public hearings with the Attorney General, and many hours of interviews and testimony from senior Department of Justice officials,” said Dean Boyd, a spokesman for the U.S. Department of Justice, “it remains clear that the Attorney General did not ask for the resignation of any individual in order to interfere with or influence a particular prosecution for partisan political gain.”
Of course, with a no-confidence vote on Mr. Gonzales planned for next month in the Senate and the Judiciary Committee’s ranking Republican, Arlen Specter, predicting that Mr. Gonzales would resign before then, the status of Mr. Gonzales’ law license may be the least of his problems.
In gripping testimony before the Senate Judiciary Committee on May 15, former Justice Department official James Comey described a standoff in the hospital room of then–Attorney General John Ashcroft. President Bush was seeking the reauthorization of the National Security Agency’s eavesdropping program. Mr. Comey, then the acting Attorney General, had already refused to recertify the program because of concerns about its legality. But according to Mr. Comey, Mr. Gonzales, then the White House counsel, had raced to Mr. Ashcroft’s bedside to circumvent the department’s ruling.
For Mr. Gillers, this was an obvious example of obstruction of justice, a crime also forbidden by D.C. bar regulations. In his view, the Department of Justice had already deemed the program illegal. “By seeking to advance an illegal scheme with the advantage of D.O.J. approval,” he wrote, “Gonzales seriously interfered with the administration of justice.”
Meanwhile, the debate continues. “What I’m seeing is two people, they’re all in the executive branch, they’re talking, they’re not threatening, they can disagree with each other, they both report to the President,” said Ms. Rapoport of Mr. Ashcroft and Mr. Gonzales. “I don’t see obstruction here.”