a citizen’s journal by Thomas Nephew

The Gonzales resignation: a strategic retreat

Posted by Thomas Nephew on August 27th, 2007

Like a lizard shedding its tail to get out of trouble, the Bush administration has shed an expendable appendage to change the news cycle and get away with business as usual. The Gonzales resignation strikes me as part of a quite successful pattern of strategic retreats and counterattacks by the Bush administration, all designed to protect its impeachable and often flatly criminal core.

The FISA revision a couple of weeks ago remains Exhibit A in this respect. Bush’s lawlessness in pursuing warrantless electronic surveillance was one of the clearest statutory-level “smoking gun” grounds for impeachment — but the egregiously misnamed “Protect America Act” seemed to make legal precisely the actions even administration officials like James Comey objected to. Likewise, regarding torture, elements of the Military Commissions Act (MCA) may have had the purpose of insulating administration officials from legal, constitutional, and international law claims by retroactively applying its provisions to acts after September 11.*

These two bills represented Congressional collapses — in the former case, inexcusably presided over by an “opposition” party allegedly representing me — that arguably weakened the political case for impeachment on either of these grounds. This was because they enabled a cheap political retort along the lines of “you want to impeach them for stuff you just legalized?” — whether or not that’s true for every single act of warrantless surveillance, or cruel, degrading, or flatly torturous conduct carried out at Bush and Cheney’s direction or with their blessing.

Turning to Gonzales, Robert Kuttner recently supported impeaching Gonzales as a kind of “baby step” towards prying loose more data about AttorneyGate and possibly proceeding with Bush and Cheney’s impeachment at a later date. And Representative Jay Inslee (D-WA-1) is sponsoring a Gonzales impeachment resolution which Nancy Pelosi famously sighed and delicately rubbed her temples about a month ago. But in the face of continued Bush administration stonewalling of the Senate and House Judiciary Committee Attorneygate investigations — i.e., investigations of impeachable voter suppression tactics and the partisan abuse of law enforcement — maybe even Pelosi and Reid were becoming willing to move. Now, however, Gonzales’ resignation may have blocked the “Gonzales impeachment” avenue towards Bush and Cheney’s impeachment.**

Of course, what will come next instead is a struggle about Gonzales’ successor, whether that successor is apparent frontrunner Michael Chertoff, current Solicitor General Paul Clement as “acting Attorney General,” or perhaps even a recess appointment. What can we count on in that respect?

A couple of things, I think. First, Democrats will claim the Attorney General’s resignation is an important victory to their credit — never mind that too many of them voted to confirm his nomination in the first place, never mind that Josh Marshall and “Talking Points Memo” did more to bring down Gonzales (and Abramoff, and DeLay) than they or their pals in the mainstream media ever managed.

Second, as commenter DAS argues in a Matthew Yglesias item about Gonzales, the new shape of debate will be “the Dems already drove poor AG AG out — isn’t that enough? now that the few bad apples are out, isn’t the problem over?” In that respect, whatever replacement mechanism happens, deep thinkers like Joe Lieberman have already explicitly argued that Bush’s cabinet level appointments — Alberto Gonzales, in fact — always deserve presumptive approval, presumably barring an axe murder or an illegal nanny in their background.

Thus, hearings about any eventual nominee (if there are any) will presume (1) he or she isn’t worse than Gonzales, and (2) the President’s institutional “right” to get whomever he wants.

By contrast, it will be deemed partisan, divisive, and unsporting to wonder whether there’s any reason not to assume the next Attorney General will continue Gonzales’ pattern of abuses of office, forward-leaning yes man behavior, and never failing to tell the “half truth, the partial truth and everything but the truth.”

NOTES: “FISA revision,” “may have had the purpose,” “presumptive approval,” “forward leaning yes man” — discussions at this blog; “half truth” etc. — Senator Charles Schumer, reported by CNN, 7/27/07; “sighed” etc. — Ari Berman, The Nation, 7/31/07 (“Why Pelosi Opposes Impeachment”); “recess appointment” — Josh Marshall, “Talking Points Memo,” 08/27/07; Other links may be supplied later.
* Marty Lederman (“Balkinization”) disagrees that the MCA law also served this purpose, though his point may have been more about lower level military or intelligence officials violating Common Article 3 of the Geneva Conventions under administration detainee and interrogation policy than about protecting policymakers like Yoo, Rumsfeld, Addington, Haynes — or Gonzales — from charges like those prosecuted in the Nuremberg “Justice Trial“.
** However, as Avedon Carol and John Conyers have pointed out, you don’t have to actually be in office to be impeached — after all, one of the consequences of conviction is that you can’t hold federal office again. Considering that Gonzales has been on short lists for a Supreme Court nomination before, that would be no small thing.

4 Responses to “The Gonzales resignation: a strategic retreat”

  1. Nell Says:

    hearings about any eventual nominee (if there are any) will presume … the President’s institutional “right” to get whomever he wants.
    Surely this is where we have to concentrate our fire. Even granting, as I don’t, that a President in general has a “right” to nominees of his/her choosing, this President has forfeited that right to be given the benefit of the doubt.
    Especially for the top law enforcement officer of the country.
    In light of all the stonewalling and lies (not restricted to Gonzales) surrounding the torture policy, the political abuse of the DoJ, and the warrantless spying on American citizens, there can be no confirmation of anyone who is not demonstrably independent of Cheney and Bush.
    However, if we’re successful in getting that through the Senators’ heads, we’ll see the Clement-for-210-days approach.

  2. Thomas Nephew Says:

    I agree with you about demanding independence — and I agree about the likely consequence. I suppose I’d take Clement for 210 days.
    Meanwhile, I’d also rather see Reid’s alleged approach (continued investigation) than Schumer’s (unbelievably, OK nominee means end of investigations). Quit before you reach the White House, eh, Schumer?
    [link: Embattled Gonzales Resigns, Eggen and Fletcher, WaPo, 8/28]

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