Cleaning Up Gonzales's Mess

Only a few short months ago, Alberto Gonzales's resignation was all but a foregone conclusion. His credibility was kaput. His presence as attorney general was hindering public confidence in the work of the Department of Justice, impeding its ability to deal with Congress, shattering morale through its halls, and generally embarrassing the administration which he supposedly serves.

Yet Gonzales refused to step down, somehow believing himself to be the right man to repair the damage he had done--damage he alternately denied doing and apologized for doing even while denying that he had done it. And Bush refused to get rid of him. His tenacity in leaving Gonzales in his position led many people within the department to resign themselves to another year-plus of his tenure. He had weathered so much, they reasoned, that nothing short of a Katrina-style natural disaster could remove him from Main Justice before President Bush himself left office. In June, in a comic sign of the shift, Slate took down its "Gonzo-Meter" feature, which measured Gonzales's likelihood of leaving office, in light of the events of the day. The Gonzo-Meter's premise was wrong, Slate wrote. While the news was bad as could be, "some mystical alchemy provides that the worse he does, the better his chances become of remaining in office."

Having thus established that he could and would stay, even if doing so meant enormous damage to his department, Gonzales then inexplicably resigned. The inevitable became a genuine surprise. Why he chose to do so now is anyone's guess. To whatever extent he was being "impeded from doing important work because his good name was [being] dragged through the mud for political reasons," as President Bush put it, that was hardly new. Bush's self-pitying whine that Gonzales's "unfair treatment [was] creat[ing] a harmful distraction at the Justice Department" was as true back in March as it is now--which is to say that, then as now, there was a harmful distraction at the Justice Department.

Indeed, there's no small element of disregard for the institution in the timing of Gonzales's departure--just as there was disregard in his long-running refusal to depart. Had the man stepped down earlier, his then-deputy, Paul McNulty, could have minded the ship until the Senate confirmed a successor. Now, however, McNulty is gone too, off to be a partner at Baker %amp% McKenzie. There's no Senate-confirmed associate attorney general either, and other key slots have only temporary occupants as well. The result of this leadership vacuum is that Paul Clement, the solicitor general--whose day job is representing the United States before the Supreme Court--will need to step in as acting attorney general. Of course, Gonzales is taking off in mid-September, a scant few weeks before the October start of the new Supreme Court term--hardly down time for the solicitor general's office. It's as though Gonzales timed his resignation to make sure that it maximally disrupted the department's work.

The next attorney general has an exceptionally difficult job ahead of him. As a preliminary matter, he will have to get confirmed. If he manages that, he will have to restore the public credibility of the department, and restore as well its relationship with the Congress and the morale of its workforce. He will have to cooperate with the ongoing investigations of various aspects of the department's work and defend the administration's legitimate confidentiality interests along the way--though hopefully not the less legitimate secrecy claims Gonzales has made. And if he wants to get anything done, he will have to act quickly and decisively to establish this new tone--so that he can then fight a coming legislative battle over the future of surveillance in the United States. In other words, he will have to be the anti-Gonzales and to establish himself as such right away. If he accomplishes all of this, he will earn the privilege of being a caretaker attorney general for a little more than a year. If he fails, he will become a punching bag.

It would take a certain masochism to accept a nomination as attorney general under these circumstances--particularly because the very steps that will permit an attorney general a modest success will likely cause a confrontation with a White House that demands slavish loyalty. Gonzales has left his successor a tough, probably impossible, needle to thread.

And yet, despite his resignation coming so late and so churlishly, despite creating such a nightmare for his successor, Gonzales's decision to step down is a great thing.

Gonzales came into office amid fears that he was too close to the president, that he did not know the difference between Bush's interest and the public interest, and that he would give the president the advice he wanted to hear. Rarely have such ungenerous appraisals of a high official proven so accurate. It is part of the modern political trope to accuse the attorney general of allowing the Justice Department to become too political; the allegation is almost always false. This time it was true. And it was essential for Gonzales to leave in order to emphasize the unacceptable nature of such compromises of the department's core mission.

There are few true musts for an attorney general. He need not be a great legal mind--though the greatest attorneys general have been. He need not be a great prosecutor. He need not have experience in a courtroom or be a great administrator; the department, after all, has legions for first-rate trial lawyers and a good deputy attorney general can run day-to-day operations just fine. A good attorney general, however, absolutely must have an unassailable reputation for probity and independence. Gonzales did not have one coming in, and his conduct in office--and particularly the revelations during his tenure about his conduct as White House Counsel--only eroded it further.

If there is a bright spot in Gonzales's legacy, it is that his story may make future presidents think hard about appointing an attorney general whose principal qualification is being personally close to the president. Bush did not create this tradition. John F. Kennedy appointed his brother; Ronald Reagan had Ed Meese; Bill Clinton put Webster Hubbell just below the department's throne. It's a bad model for the department, one that makes it hard for the attorney general to maintain the independence on which everything depends. The harder but better model--better for the public and better ultimately for the presidency--is one based on arm's-length legal advice, the idea of maintaining a certain personal and political distance between the White House and the Justice Department, a distance adequate to ensure both the reality and the appearance of non-partisan justice. The disaster of Gonzales's tenure offers a case study in this basic point.

By Benjamin Wittes