Attorney General Alberto Gonzales says his long friendship with President Bush makes it easier to say “no” to him on sticky legal issues.
His critics, however, say Gonzales is far more likely to say “yes” — leaving the Justice Department vulnerable to a politically determined White House.
Probably not since Watergate has an attorney general been so closely bound to the White House’s bidding. In pushing counterterror programs that courts found unconstitutional and in stacking the ranks of federal prosecutors with Republican loyalists, Gonzales has put Bush’s stamp on an institution that is supposed to operate largely free of the White House and beyond the reach of politics.
“This intertwining of the political with the running of the Justice Department has gone on in other administrations, both Republican and Democrat,” said Paul Rothstein, a professor at Georgetown Law School. “But I think it’s being carried to a fine art by this president. They leave no stone unturned to politicize where they think the law will permit it. And they push the line very far.”
Gonzales, a friend and adviser to Bush since their days in Texas, calls their close relationship “a good thing.”
“Being able to go and having a very candid conversation and telling the president: ’Mr. President, this cannot be done. You can’t do this,’ — I think you want that,” Gonzales told reporters this week. “And I think having a personal relationship makes that, quite frankly, much easier always to deliver bad news.”
“Do you recall a time when you (were) in there and said, ’Mr. President, we can’t do this’?” Gonzales was asked.
“Oh, yeah,” the attorney general responded.
“Can you share it with us?” a reporter asked.
“No,” Gonzales said.
Gonzales, facing a no-confidence vote in the Senate, is resisting lawmakers’ demands to resign and says he will remain as attorney general until he no longer has the president’s support. The White House is steadfastly backing its man.
“It’s important for any public official to have as much confidence as he can garner, and it will ebb and flow,” White House spokesman Tony Fratto said Friday. “But it will not ebb and flow with this president and this attorney general.”
An ever-growing cadre of critics says Gonzales has repeatedly sought to shape the normally independent Justice Department to the White House’s ends. The department has long resisted political influences that could threaten its ability to fairly and impartially uphold the law.
White House influence?
Among examples they cite of White House meddling at the Justice Department:
- A dramatic 2004 confrontation between Gonzales, then serving as White House counsel, and former Attorney General John Ashcroft over whether to reauthorize a secret program to let the government spy on suspected terrorists without court approval.
At the time, Ashcroft was hospitalized in intensive care and not seeing any visitors. His former deputy, Jim Comey, told the Senate this week that Gonzales and then-White House chief of staff Andy Card came to Ashcroft’s hospital room to get his approval in what Comey described as an “effort to take advantage of a very sick man.”
Ashcroft refused to sign off on the program. The next day, the White House reauthorized the program without the Justice Department’s approval. Ultimately, Bush ordered changes to the program to help the Justice Department defend its legality.
Less than a year later, in February 2005, Gonzales took Ashcroft’s place as attorney general. The program was branded unconstitutional by a federal judge and has since been changed to require court approval before surveillance can be conducted.
- Allegations that Monica Goodling, the Justice Department’s liaison to the White House and Gonzales’ former counsel, aimed to only hire career prosecutors who were Republicans. Making hiring decisions based on political affiliation is illegal.
Goodling quit the Justice Department last month and is set to testify next week before a House panel investigating whether politics played a part in the firings last year of eight U.S. attorneys.
- Justice Department documents show that shortly after the 2004 elections, Bush political adviser Karl Rove questioned whether all 93 of the nation’s top federal prosecutors should be ordered to resign. He also helped coach Justice aide William Moschella’s planned testimony before the House Judiciary Committee. Rove also was included in e-mail traffic about the firings between the White House and the Justice Department.
As presidential appointees, U.S. attorneys serve at the president’s pleasure, and the White House is properly involved in discussions about their employment. But Rove used an unofficial e-mail address, registered to the Republican National Committee, to correspond about the firings — raising the specter that politics was behind the ousters.
- The administration changed policy to allow more Justice Department officials to be in touch with the White House about some of the government’s most sensitive criminal and civil cases. During the tenure of Democrat Bill Clinton, such discussions were restricted to six people — two at Justice and four at the White House.
In 2002, a year after Bush took office, the number of people was greatly expanded. By Sen. Sheldon Whitehouse’s estimates, 417 White House staff members and 42 Justice Department employees can discuss sensitive cases.
“It creates a partisan atmosphere, and that creates issues of confidence in the administering of justice,” said Whitehouse, a Rhode Island Democrat who previously served as U.S. attorney there.
Some Republicans, too, doubt Gonzales can keep the White House’s influence from improperly seeping into the Justice Department.
Reforms for agency independence
“The problem here is that it appears the attorney general, when he moved from 1600 Pennsylvania Avenue to the Department of Justice, he didn’t realize he’d changed jobs,” said Arnold I. Burns, a deputy attorney general during the Reagan administration.
Burns himself is a reminder that close ties between Justice and the White House have posed problems before. He resigned in 1988 in protest of charges of improper behavior by then-Attorney General Edwin Meese III, a longtime friend of President Reagan. Meese was later cleared but resigned before the end of the term.
Former Attorney General Robert F. Kennedy, too, had obvious close ties to President John F. Kennedy, his brother. But critics say Gonzales’ relationship with Bush rivals that between former Attorney General John Mitchell and his former law partner, President Nixon.
Mitchell left the Justice Department in 1972 to run Nixon’s re-election campaign. He served 19 months in prison after conviction on conspiracy, perjury and obstruction of justice charges for his role in the Watergate break-in of Democratic headquarters.
Reacting to Watergate abuses, Carter administration Attorney General Griffin Bell instituted reforms to help maintain the department’s independence. Among the changes: a ban on lawmakers and the White House directly contacting prosecutors about specific investigations.
‘A loyal attorney general’
That ban was violated last year when New Mexico GOP Sen. Pete Domenici and Rep. Heather Wilson called former U.S. attorney David Iglesias in Albuquerque to ask about the status of public corruption cases. Iglesias later said they wanted to know whether he was going to indict Democrats before the looming election. The incident is cited by Democrats who argue the U.S. attorney firings were politically motivated.
No one has accused Gonzales, personally, of breaking the law to put Bush’s stamp on the Justice Department. The attorney general maintains he is working to not only fix mistakes that his aides made in hiring and firing prosecutors, but also to secure the public’s confidence in the beleaguered department.
Whether he can salvage his own reputation remains to be seen.
Philip Heymann, a Harvard law professor who worked at the Justice Department under several Democratic presidents, said the White House is using the law “almost exclusively as a form of protection and a form of armor, if you can get the Justice Department to say it’s fine.”
“I think they wanted a loyal attorney general, not somebody who would say ’no’ when they very badly wanted them to say ’yes,”’ Heymann said. “And now they’ve got that.”