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.”