So, what's the fuss? they ask. The reasons are out there for anyone who wants to know.
Historically both major parties have treated the Justice Department as independent. It has been one of the least politicized branches of the executive. The reason for this special treatment isn't much different than the reason we also want the Internal Revenue Service to be independent of partisan politics and not staffed by partisan hacks: Both the IRS and the Justice Department have the awesome power to enforce existing law against ordinary citizens on a day to day basis.
We're not just talking only about the power to prosecute suspected criminals (or for the IRS to run down tax cheats), or the power to imprison citizens, or even the power to rain ruinous fines on the lives of any person or business it may take a mind to crush. In countless ways we may not even be aware of, the Constitution permits the Justice Department in certain circumstances (and the IRS in other circumstances) to insinuate itself into our daily lives, invade our privacy, and interfere with our most intimate friendships and business associations as part of its investigative function.
In that regard, too, the 93 U.S. attorneys scattered around the nation are the local embodiment of the federal government's most imposing governmental power.
To give you just one example: a former U.S. attorney we know in another state once told us that she was shocked when she took office to discover that every secret federal wiretap request had to have her approval. Thousands of them were submitted to her office in her first year in office; and the number escalated exponentially with every new year.
This was before 9-11 and the Patriot Act that greatly expanded federal investigative powers. And it happened in a federal district which is predominantly white, elderly, rural, and notoriously law abiding. We can only imagine what the volume of secret wiretap requests may have been in more culturally diverse and densely populated urban settings.
"You wouldn't believe how bad so many of those wiretap requests were," she told us. "A very high percentage were based on nothing more than personal curiosity about something a sloppy agent had seen on TV, or a ridiculous misunderstanding about the facts of an incident, mistaken identity, a law enforcement agent's ignorance about the law, or even personal vendettas. "
She told us she felt compelled to turn down the majority of secret wiretap requests simply because on the face of it they couldn't pass the laugh test.
Although newly-nominated U.S. attorneys traditionally are selected by criteria that include some measure of past party affiliation, their retention in office -- until Nixon, of course, and now the Bush administration -- always has been guided by objective assessments of professional skill and actual performance. Were it otherwise, the flood gates would be open to misusing the power of the Justice Department to launch partisan criminal investigations and criminal prosecutions of members of one political party against the other. That would be death knell for equal justice in America.
We thought of this last week while reading John Dean's regular weekly (and always excellent) column on the attorney web site FindLaw.com. There, Dean essentially made four points :
- Alberto Gonzales has a "stunning lack of Republican support" among Republican members of the U.S. Senate Judiciary Committee.
There are nineteen members of the Senate Judiciary Committee, ten Democrats and nine Republicans. Based on the conduct displayed during the Gonzales hearing it appears that the Attorney General has the support of only two Republicans.
- The reason is that the senators realize the Department of Justice has become "a mere political appendage of the White House."
In a premise to a question for Gonzales, Senator Whitehouse said he had found correspondence in the files of the Senate Judiciary Committee from the days when Orrin Hatch was chairman relating to... the relationship between the Clinton White House and the Justice Department (under Attorney General Janet Reno). The correspondence showed that four people in the White House (the President, Vice President, chief of staff, and White House counsel) could speak with three people in the Justice Department (the Attorney General, the Deputy Attorney and the Associate Attorney General) - period.
Senator Whitehouse discovered - and created a chart to make the point - that in the Bush White House, a shocking 417 people could speak with 30 different people in the Justice Department. It was a jaw-dropper. As Chairman Leahy said, when he asked Senator Whitehouse to continue when his time expired, in his thirty years on the Judiciary Committee, he had never seen anything like the open contacts from the White House to the Justice Department that had occurred in the Bush Administration.
- Alberto Gonzales "is simply not up to the job."
While Gonzales all but concedes the incompetence with which the removal of the U.S. Attorneys occurred, he somehow seems to think he has all else under control. Yet he could not even competently explain what had happened to these federal prosecutors he fired, or why they were fired.
- Nevertheless, Dean predicts Gonzales "is not going to resign" and Bush won't fire him.
Bush is openly embracing the "Peter Principle" - the management theory that says that, as people within an organization advance to their highest level of competence, they will then be further promoted to, and remain at, a level at which they are incompetent.
Even so, leaving Gonzales in place would be a terrible, terrible mistake for the nation. If you care, as you should, about the integrity and independence of the U.S. Justice Department then you can see that continued intransigence by Bush would be a disaster for everyone.
No one would find pleasure in the prospect of 21 months of incompetence and partisan corruption running the IRS. There is none we can see in having Gonzales and his puppeteers running the U.S. Justice Department for the next 21 months.
Certainly, Alberto Gonzales is more than a disgrace. He is a real danger to our nation's system of laws. Leading members of his own party know it. Bush must demand his resignation -- or risk impeachment himself.
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