The Magazine

Gone-zales?

There may be a good reason Bush hangs on to his attorney general.

May 21, 2007, Vol. 12, No. 34 • By TOD LINDBERG
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Three weeks ago, when Attorney General Alberto Gonzales testified before the Senate Judiciary Committee on the Bush administration's firing of several U.S. attorneys and did so to bad reviews even from conservatives, most of official Washington figured he was a goner. When President Bush stepped out at the end of the day to say a good word for his embattled AG, the general reaction was that Bush had demonstrated yet again how out of touch he is.

Now, following Gonzales's May 10 appearance before the House Judiciary Committee, it looks instead like he's going to be around for the duration. It's no defense of Gonzales himself, or of the administration's handling of the firings, or even of Bush's penchant for placing longtime loyalists in positions where they find themselves in over their heads, to acknowledge that if Gonzales does indeed stay, it will be an important political victory for the administration-in that the alternative, Gonzales's departure under fire, would have been a catastrophic defeat.

Washington often gets focused on what happens next: Will Gonzales stay or will he go? But the real action is what happens after what happens next. In the case of a Gonzales departure, the president would face the extremely dodgy problem of getting a new attorney general confirmed.

Democrats with good memories, such as former Rep. Elizabeth Holtzman, who served on the House Judiciary Committee when it voted to impeach Richard Nixon in 1974, recall with precision the sequence of events that led to the resignation of the 37th president of the United States.

Richard Kleindienst was Nixon's attorney general at the time of the Watergate break-in. He resigned on April 30, 1973, the same day Nixon fired John Dean and accepted the resignations of H.R. Haldeman and John Ehrlichman. Though Kleindienst was primarily under fire for his role in handling an antitrust case, the timing of his departure inevitably made him a Watergate casualty.

And it created a job opening in an increasingly desperate time. Nixon looked to his recently installed secretary of defense, Elliot Richardson, to move over to the Justice Department. The confirmation process before the Democratic-controlled Senate Judiciary Committee was brutal. The price of confirmation for Richardson was his willingness to appoint a "special prosecutor" with a broad mandate and a grant of independence to investigate the Watergate crimes and unfolding coverup.

It took a couple weeks of battle for Richardson to satisfy Sen. James Eastland's Judiciary Committee with the selection of Archibald Cox, who had served as solicitor general in the Kennedy administration and remained close to Massachusetts's premier political family as a professor at Harvard Law School. As Nixon noted bitterly in his memoirs, "If Richardson had searched specifically for the man whom I would have least trusted to conduct so politically sensitive an investigation in an unbiased way, he could hardly have done better than choose Archibald Cox."

As David Broder wrote in the Washington Post at the time, "There is no way now that Richardson can spare his President from the most pitiless investigation. . . . Should the President lean on him in any way, all Richardson has to say is, 'Sir, if that is an order, I am afraid I would have no choice but to resign.'" When Nixon ordered him to fire Cox five months later, Richardson did resign.

"The rest," as Holtzman wrote in the May 1 Los Angeles Times reviewing those heady days, "is history." A Gonzales departure would offer Holtzman the main chance to make good on the title of her 2006 book, The Impeachment of George W. Bush: A Practical Guide for Concerned Citizens. She is hardly alone among Democrats in slavering over the prospect of a new "independent counsel"-style investigation of the Bush administration-one that would succeed where Patrick Fitzgerald failed by finding and charging a conspiracy and coverup all the way to the top.

It may seem hyperbolic to equate the U.S. attorney firings with the Watergate break-in. Except that it's not so much the triggering event as the stonewalling, memory lapses, contradictory testimony, missing documents, and lies under oath that constitute the real meat of a Washington scandal. Anybody who thinks an independent counsel let loose on the U.S. attorney firings could ever reach the conclusion that they were no big deal, even if they were no big deal, doesn't appreciate the logic and momentum of their own that such investigations acquire.

Sen. Patrick Leahy has already indicated that he would insist on the testimony of Karl Rove and others before he confirmed a new attorney general, but that was clearly just an opening bid. Why wouldn't he insist that a nominee recuse himself from investigating the firings and charter a special counsel to do so instead? Four weeks before Richardson took office, Nixon made it clear that the decision about appointing a special prosecutor was Richardson's alone to make. Then Richardson had to queue up an acceptable one prior to his confirmation. Could Bush put forward an attorney general nominee either under White House instruction not to appoint an independent counsel or unwilling to tell the Senate whether he would make such an appointment? Not if he expects to get past Leahy.

Holtzman was presciently skeptical about Gonzales actually leaving. She understood the risks to Bush, as did some graybeards on the other side of the aisle. Whether Bush got effective counsel about the danger of caving over Gonzales, figured it out himself, or simply lucked into it because of loyalty to an old friend, he seems to have managed to escape the greatest politico-legal peril he has faced.

Contributing editor and Hoover Institution fellow Tod Lindberg's The Political Teachings of Jesus will be published next month by HC/HarperCollins.