With Monday cable coverage caroming back and forth from the resignation of US Attorney General Alberto Gonzales to the plea agreement for disgraced NFL quarterback Michael Vick, viewers could be forgiven for thinking that a White House now run by one of the world’s more ineffectual Major League Baseball franchise owners could benefit from a dollop of athletic discipline. Vick at least owned up to “full responsibility” for his gruesome avocational interest in dog-fighting, allowing for good measure that he “disappointed himself,” needs “to grow up” and even “found Jesus” while waiting to enter his guilty plea in federal court.
Very much by contrast, the ever amnesiac, whiny and incompetent head of the Bush Justice Department asserted in a brief statement that his term in public service had been “noble and honorable”—to the extent, one imagines, that he can still recall any of it. And for perhaps the 7,000th time in that term, made a crass look-over-there reference to his humble immigrant roots, saying “I have lived the American dream.”
Though in a certain sense, Gonzales—who presided over the most rampant politicization of federal law enforcement since Watergate—had a point: the man whom President Bush affectionately nicknamed “Fredo” was living the gaudy, vindictive version of that immigrant dream immortalized in Francis Ford Coppola’s Godfather trilogy. And like his Coppola namesake, he was now getting thrown overboard—only not for breaking faith with the family, but for hewing all too closely, and ineptly, to the politics-first strictures of the Bush governing style.
“This administration holds lawyers and our legal system in disdain,” says Jonathan Shapiro, a former assistant US attorney who now divides his time between teaching law and writing screenplays in Los Angeles. “They don’t like the legal system as it’s now oriented, and they don’t want to give power to lawyers.” So in Gonzales, whose legal career launched in earnest when Bush appointed him to the Texas bench, they found the perfect party hack to administer and defend an agenda freely bending the rule of law to the extension of executive power. “I was chief of staff for Cruz Bustamente, the lieutenant governor out here who was the Gore co-chair in California,” Shapiro recalls. “And we did research on Gonzales, when his name was out there as a potential Supreme Court appointment. He was the guy who did such a bad job vetting clemency appeals in Texas’ Death Row cases. So it’s not like we didn’t know the guy was a hack who would put politics over life-and-death issues.”
Gonzales’ extreme fealty to his White House patrons had, indeed, made his departure all but inevitable, since it eroded the crucial, if informal, brief of judicial autonomy that the Justice Department needs to operate, particularly for the career attorneys who make up the rank and file of the federal prosecution business. “I think it became very clear that it was long past time when he could continue to function, and the Justice Department was also suffering extreme morale problems,” says Bruce Fein, a leading Republican critic of the Bush White House’s legal excesses, and a veteran of the Nixon and Ford Departments of Justice. “I know from reliable sources that when Gonzales would go out to visit U.S. attorneys offices, no one would show up for his sessions. And when there were people in attendance, he’d have to organize claps, where people would stand up to applaud. His credibility is shot in Congress. He probably thought if he didn’t leave, he would be one of the most embarrassed and discredited people in the history of American government.”
Which raises the question of who the Bush administration should bring on to begin reclaiming some of Justice’s credibility, provided that senior White House officials still car about such things. “Where’s Ed Levi now that we need him?” asks legal historian Stanley Kutler, referring to the eminent legal scholar Gerald Ford tapped to head the Justice Department after Nixon’s main justice henchman, John Mitchell, had debauched it with that White House’s paranoid political agendas. “At the time, Levi was president of the University of Chicago, and a former law school dean. Ford brought him on to shake up Justice, and that’s what he did. He got his good friend John Paul Stevens on the Supreme Court. Ford understood that was internally what the department needed—that the department was so politicized and so demoralized by Nixon, it needed a strong signal that this was a new era.”
But doesn’t that sort of strategy require, you know, a Gerald Ford in the role of White House Decider? Mr. Kutler laughs bitterly. “That’s right—I didn’t string it all together. What world am I living in?”
Mr. Fein, too, sees little prospect that the Bush White House will heed the lessons of Justice departments past. “I was there when Levi was appointed. You want someone who can look under the rug and find the family jewels, as the expression goes.”
That won’t be the main order of business in Justice during the last lame-duck months of the Bush era—which is not to say, as Mr. Fein notes, that Congress will sit still for another crony appointment, as it did so docilely when Gonzales came up for confirmation. “The Democrats aren’t going to be so dumb as to not call on a new nominee to look into all these questions. You’ve got to look into warrantless domestic surveillance, you’ve got to look into the perjury and other charges with the U.S. attorneys scandal, and you’ve got to do the same with executive privilege claims arising out of Congress’s investigations there,” Mr. Fein says, ticking off just three of the best known failures of Gonzales’s pitiful career at Justice. (His most lasting claim to legal infamy, apart from those botched Texas clemency reviews, may well be his cursory application of the fanciful doctrine of the unitary executive in the defense of detainee torture and the gutting of what he then called the “quaint” provisions of the Geneva Conventions, which he carried out during his equally obsequious term as White House counsel.)
And even with Gonzales out of the picture, there’s no reason to believe that the White House will let up on its political Corleone act. Indeed, the personal record of Gonzales in office is not so much the point, some observers say, as the unchallenged executive prerogative that makes a Gonzales appointment—and confirmation–possible. “Gonzales was a failure, but it was a characteristic kind of failure of cronyism,” says Bruce Ackerman, Sterling professor of law at Yale University. “You should recognize the way we go about electing presidents now greatly encourages cronyism in the selection of attorneys general. When the party was centrally important to the nominating process, the president tended to select someone who was strong in the party. With the modern president, when the candidate runs his own campaign, he no longer has to respond to others, in the selection of a crucial cabinet post—and one can argue few posts are as crucial as the attorney general. So you have this rather regular–not inevitable, but striking—pattern of cronyism, sort of starting with Kennedy-Kennedy, then Nixon-Mitchell. In appointing Levi, Ford had a special imperative. And Janet Reno had been more independent, but those were special circumstances, too,” Mr Ackerman says, noting the failed earlier nominations of Clinton cronies Zoe Baird and Kimba Wood to the post.
More fundamentally, Mr Kutler contends, the political DNA of the Bush White House is too deeply imprinted on its everyday operations for anything to change now. Even after deputy Chief of Staff and senior political adviser announced his resignation, after all, President Bush rose to deliver a “foul and nasty” address likening this juncture of the Iraq occupation to the final days of America’s engagement in Vietnam—a performance, in Mr. Kutler’s judgment, that shows “Karl Rove remains embedded in this White House.” The reason, he says, is again plain to anyone who cares to heed the lessons of the Nixon executive branch: “When Nixon reorganized his White House, he put his White House counsel in charge of the domestic policy arm, which was then called the White House Council. It was quite clear that this was a sort of White House mirror for the cabinet, and the offices of all department heads reported to John Ehrlichman,” that White House’s Roveian adviser-cum-enforcer, later fired and jailed for perjury and obstruction of justice. “That structure is now embedded in the American government,” Mr. Kutler says. “We can say that Rove and Bush improved on it, but to me it’s an interesting legal question: How far can Bush’s umbrella extend?”
One thing’s for sure: It’s not a question likely to be taken up by the next Bush-appointed attorney general. Indeed, the final days of the Bush era seem as much as anything to be like the Nixon White House in reverse. Where Bush’s predecessor in scandal imploded in a self-destructive fury of lawbreaking, this administration carelessly sheds cronies in pursuit of an ever-more hermetic brand of executive prerogative, placed carefully and deliberately outside the customary reach of the law. Bush policy makers “want an acquiescent, a somnolent Justice Department,” Mr. Fein says, “which is what they’ve had ever since 9/11.” All the president needs now, of course, is a secret plan to end the war.