Monday August 27, 2007 08:30 EST
(Updated below – Update II – Update III)
One of the most blatantly dishonest political hacks ever to occupy the position of U.S. Attorney General, Alberto Gonzales, has now resigned.
This is a real moment of truth for the Democratic Congress. Democrats,
who have offered up little other than one failure after the next since
taking power in January, can take a big step toward redeeming
themselves here. No matter what, they must ensure that Gonzales’
replacement is a genuinely trustworthy and independent figure.
That means that Democrats must not confirm anyone, such as Michael
Chertoff, who has been ensconced in the Bush circle. Instead, the DOJ
and the country desperately need a completely outside figure who will
ensure that the prosecutorial machinery operates independently, even if
— especially if — that means finally investigating the litany of
Executive branch abuses and lawbreaking which have gone almost entirely
uninvestigated, as well uncovering those which remain concealed.
The standard excuse invoked by Democrats to justify their capitulations
— namely, that they cannot attract a filibuster-proof or veto-proof
majority to defy the President — will be unavailing here. They
themselves can filibuster the confirmation of any proposed nominee to
replace Gonzales. They do not need Blue Dogs or Bush Dogs or any of the
other hideous cowards in their caucus who remain loyal to the most
unpopular President in modern American history. The allegedly “Good
Democrats” can accomplish this vital step all on their own. They only
need 40 Senate votes to achieve it.
It is difficult to overstate how vital this is. The unexpected
resignation of Gonzales provides a truly critical opportunity to
restore real oversight to our government, to provide advocates of the
rule of law with a quite potent weapon to compel adherence to the law
and, more importantly, to expose and bring accountability for prior
lawbreaking. All of the investigations and scandals, currently stalled
hopelessly, can be dramatically and rapidly advanced with an
independent Attorney General at the helm of the DOJ.
That is not going to happen if the Democrats allow the confirmation
of one of the ostensibly less corrupt and “establishment-respected”
members of the Bush circle — Michael Chertoff or Fred Fielding or Paul Clement
or some Bush appointee along those lines. The new Attorney General must
be someone who is not part of that rotted circle at all — even if they
are supposedly part of the less rotted branches — since it is that
circle which ought to be the subject of multiple DOJ investigations.
As Democrats supposedly just learned (yet again), even the Bush
appointees whom they claim (foolishly) to believe they can trust to act
independently, such as DNI Mike McConnell, have their ultimate
allegiance to George Bush and Dick Cheney. The President is certainly
entitled to choose someone who is generally compatible with him
ideologically, but the only acceptable replacement for Alberto Gonzales
is someone who is truly independent of the Bush machine and whom
Democrats are supremely confident will act independently, which means
pursuing criminal investigations where warranted of the highest levels
of this administration, including the departing Attorney General
himself.
Congressional Democrats, insulting the intelligence of their own
supporters, have repeatedly claimed to have trusted the Bush
administration and its appointees only to be “betrayed” time and again
— they were “betrayed” by allowing the confirmation of Alito and
Roberts to the Supreme Court based on false assurances that they would
respect precedent; they were “betrayed” again by the agreement on the
Military Commissions Act between the White House and
Graham/Warner/McCain only to then have the agreement modified severely
by last-minute changes; they were “betrayed” again by trusting Mike
McConnell on the FISA deal; and they even claim to have been “betrayed”
by supporting the confirmation of Gonzales himself based upon
assurances at his confirmation hearing that he understood and would
honor his independent role as Attorney General.
That excuse is not going to work again. Relying on assurances from
some current Bush appointee that they will act independently is
woefully and self-evidently insufficient. Only a truly outside figure,
one who is entirely independent of the Bush circle, should be
acceptable.
Pressuring Senate Democrats right away on this is vital. There is no
more important domestic political goal then ensuring that the DOJ
investigative and prosecutorial machinery operates independently.
Senate Democrats will have none of their usual excuses if they fail to
compel the nomination of someone truly independent and/or if they sit
by meekly and allow the appointment of someone whose independence is
even questionable.
Whatever it takes — repeated blocking of nominees, filibustering,
protracted hearings — it is critical that it be done in order to
restore integrity to the DOJ. A less-than-independent replacement as
Attorney General will be entirely the fault of Democrats if they allow
it to happen. Conversely, by ensuring the confirmation of someone
independent, Senate Democrats can take a major step in revitalizing the
rule of law, revitalizing their political base, showing the country
they stand for something, and making the case that the 2006 midterm
election change of control actually meant something.
UPDATE: Commenters have suggested that Bush could bypass the confirmation process with a recess appointment, but Bush and Harry Reid have an agreement in place that there will be no recess appointments during Congress’ adjournment:
There’ll
be no recess appointments this time around, Roll Call reports (sub.
req.), meaning the White House won’t be taking advantage of Congress’
vacation to install any contested nominees. That’s due to a deal
between Bush and Senate Majority Leader Harry Reid (D-NV). . . .Last recess, the White House made a number of controversial recess
appointments, including Swift Boat backer Sam Fox as ambassador to
Belgium. In order to prevent that sort of thing from happening again,
Reid had plotted to keep the Senate in “pro forma” session during the
recess — whereby the Senate floor personnel show up every three days
to make it an official session. But now Reid and Bush have made a deal,
according to Roll Call. Bush won’t make any recess appointments and
Reid has promised to move some of his nominees when Senate gets back in
session.
Obviously,
there is nothing truly binding about the agreement, and Bush could
violate it. But in the Beltway world, that is a Draconian step that
seems unlikely (though not impossible) for many reasons. Far more
likely, it seems, is Bush’s (reasonable) belief that Senate Democrats
will be as accommodating as usual and confirm a replacement who is
acceptable to the administration.
UPDATE II:
Oddly, the Drudge Report, for a period of no more than several minutes,
apparently “reported” that the Bush administration would replace
Gonzales via recess appointment, but has now taken that down.
Identically, the publication most closely associated with Drudge, The Politico,
briefly had a caption on its front page indicating the same thing,
though nothing in its Gonzales article mentioned that. When I just went
to the Politico site to screen capture the recess appointment reference, it, too, had been removed.
The Politico does have an article by the always-plugged-into-the-Bush-administration Mike Allen which signals the potential administration strategy here:
The acting attorney general with be Solicitor General Paul Clement. He
“can stay in that position for quite a while,” a senior administration
official said.That would avoid a bruising confirmation fight. Some Democratic senators have vowed not to confirm a Gonzales successor. . . .
An administration official explained: An individual may serve in an
acting capacity for 210 days. However, if there is a pending nominee,
the 210 day “clock” starts again when a nominee is announced. The 210
day “clock” would restart again if the nominee is voted down. The clock
stops when there’s a nominee, and restarts with a new 210 days if the
nomination is withdrawn or fails.
Engaging
in that tactic would be tantamount to a recess appointment — allowing
Bush to have an Attorney General in place more or less indefinitely
without Senate confirmation. One would hope, though not necessarily
expect, that Harry Reid and company would treat that as the serious
violation of their agreement that it would be and respond with full
retaliation.
[Immediately after posting this update, the reference to a “recess appointment” has returned to the Politico front page:
And it is now gone again.]
UPDATE III: Gonzales’ resignation is not effective until September 17,
by which time Congress will be back in session, thus precluding an
overt recess appointment. The two most likely strategies for the
administration are: (a) try to find a candidate acceptable to it that
the Senate would be unlikely to block (such as some type of Bush
loyalist and Gonzales-defending Senator like Orrin Hatch — pompous
Senatorial courtesy trumps everything, including the rule of law) or,
alternatively, (b) leave Clement in place indefinitely in an interim
position, thus violating (in effect) the agreement barring recess
appointments. Either way, for countless reasons, this is a fight Senate
Democrats have to engage (which is not, of course, the same thing as
predicting they will, though all efforts should be devoted to
pressuring them to do so).
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