Gonzales: The Texan Who Can't Shoot Straight
He may be from Texas, but Attorney General Alberto Gonzales may come to be viewed as the sheriff who couldn't shoot straight.
Over the past three months, Gonzales's explanations and those of his top politicos as to why eight U.S. attorneys were fired in the middle of Bush's second term have changed, and changed, and changed. The first lone-wolf iteration, as it were, was that Gonzales's chief of staff, Kyle Sampson, had come up with the plan without Gonzales's say-so, after nixing an idea for a broader purge from then White House counsel Harriet Miers to fire all 93 U.S. attorneys.
Initially, Gonzales, Deputy Attorney General Paul McNulty, and others defended the firings, saying they were done purely for poor performance reasons. But then, confronted with Sampson's candid E-mails, which amounted to the proverbial trail of bread crumbs leading straight to the White House doorstep, Gonzales's aides had little choice but to deviate from that fairy tale and acknowledge that, well, politics was in fact at the root of the firings, stemming from a desire to reward blue-chip Bush loyalists who were helpful to his re-election campaign. But, said one Justice official, it was "both fresh blood and performance."
Even then, in a hastily staged press conference, Gonzales held his ground, saying that only weak prosecutors were fired and that it was the right decision. While offering the usual classic Washington smorgasbord of mea culpas–"I am accountable," "I accept responsibility," "Mistakes were made," and so on–Gonzales threw Sampson to the wolves. "Naturally, when questions came up with respect to the evaluation of performance of U.S. attorneys," said Gonzales in response to a question, "it would be Kyle Sampson who would drive that effort. Yes, ma'am."
Gonzales then vowed to fix the problem and learn from his mistakes.
End of story?
Well, not quite.
More E-mails
Late Thursday, the Justice Department released more E-mails that meant more bad news for Gonzales: One E-mail indicated that Sampson had recommended early in 2005 removing up to 20 percent of "underperforming" prosecutors but retaining the other 80 percent who were "loyal Bushies." The E-mails also revealed that Bush's political adviser Karl Rove asked the White House counsel's office in early January 2005 whether it was going to move forward with a plan to fire all 93 prosecutors. At the time, Gonzales was in transition from the White House counsel job to the attorney general job and was prepping for Senate confirmation hearings.
The E-mails show that in December 2004, Sampson and Gonzales had "briefly" discussed the U.S. attorney removal plan. One E-mail lists four reasons from Sampson that getting rid of all 93 was a bad idea. Justice Department spokesperson Tasia Scolinos issued a statement that Gonzales "has no recollection of any plan or discussion" to replace the U.S. attorneys when he was still White House counsel. Scolinos said the E-mail occurred during the weeks Gonzales was preparing for his confirmation hearing. "And his focus was on that." Anyway, such discussions would have been "appropriate and normal," Scolinos said, because the White House was "considering different personnel changes administrationwide."
Even as Gonzales and his team began to bear a distinct resemblance to the Keystone Cops, Gonzales said he would not quit his job.
"I've overcome a lot of obstacles in my life," said Gonzales, "to become attorney general."
The endless cascade of revelations, accusations, and counterpunches is sapping the resources of the Justice Department leadership and consuming the legislative staff, as Democrats seek a mountain of documents in an effort to paralyze the department and lay the groundwork to make Gonzales a campaign issue in the 2008 congressional and presidential races.
At the end of the week, it was uncertain whether Gonzales could survive the crisis. Some insiders predicted a quick end, pointing to how quickly Sampson bit the dust.
It certainly would be an ignominious end to a political career that had a rocket-speed trajectory for someone who earned his stripes more from loyalty than experience and who spent most of his career as Bush's consigliere, the almost-family outsider so reminiscent of Robert Duvall's brilliant portrayal of Tom Hagen in The Godfather.
"He was someone who was always very grateful to Bush," says Texas appellate lawyer Douglas Alexander, "for basically putting him on a fast track."
A Long History With Bush
Gonzales spent two years as then Governor Bush's general counsel in Austin, then hopscotched briefly to the secretary of state position before Bush named him to the Texas Supreme Court, for which he had little trial or judicial experience. When Bush became president, he named his loyal friend–whom he has called mi abogado (my lawyer)–to the sensitive post of White House counsel. Once again, although Gonzales had no national security experience, he wound up playing a central role in crafting the controversial "war on terror" legal policies.
Bush rewarded him with the attorney general's post after key Republicans refused to support him for a possible Supreme Court seat because of Gonzales's previous stances on abortion.
As to the 110,000-employee Justice Department he runs, at his press conference this week Gonzales admitted being somewhat out of his depth.
"I am not aware of every bit of information that passes through the halls of the Department of Justice," said Gonzales, "nor am I aware of all decisions."
But many of Gonzales's critics didn't buy that explanation. To them the firings represent Gonzales's failure to take that giant mental leap from his old role as Bush's Texas consigliere to top lawman for the United States. The question at hand is whether he is capable of making apolitical decisions that are solely in the best interests of the country, rather than those of his longtime mentor.
"The attorney general is a constitutional role; he's not an adviser to the president," says William Weston, dean of Kaplan University's School of Legal Studies. "There's too close a nexus here politically."
Which is not to say that presidents don't place people with whom they have close ties–even blood ties–in the job. Case in point: Robert Kennedy. And many other attorneys general have been lightning rods in the past, for different reasons.
Take Edwin Meese, for instance, who served under President Ronald Reagan and wound up becoming the most investigated attorney general in history thanks to his questionable personal financial and ethical dealings, which resulted in numerous calls by Democrats and even folks in his own party to "un-Meese" the Justice Department. Or take President Bill Clinton's attorney general, Janet Reno, who was personally squeaky clean but was assailed by Republicans as soft on crime. She also became overwhelmed by the Republicans' quest for blood over Clinton's financial and extramarital shenanigans and their constant demands for independent counsels to investigate both Clinton and his political appointees. Like Gonzales, Reno, a former state prosecutor, was essentially an interloper in insular Washington–a different kind of Wild West–where outsiders inexperienced in the coyote-eat-coyote culture can get chewed up and spat out in a hurry. But Reno was perceived as being independent from Clinton. She dropped the Whitewater/Monica Lewinsky probe into special counsel Kenneth Starr's lap like a hot potato, resulting in Clinton's impeachment.
"I think she was much more distant from the White House than I think Gonzales is perceived to be now," says Carl Tobias, who teaches constitutional law at the University of Richmond. "There was a lot of tension between the White House and Reno. And a lot of people think that's a good thing."
As Reno or other attorneys general can attest, when you serve in that critical job, chances are good that you will get blindsided by something. For Gonzales, it was the highly explosive E-mails from Sampson.
The Trusted Subordinate
If there was one person in the Justice Department whom Gonzales believed he could trust, it was Sampson. A graduate of the University of Chicago law school, Sampson was young, industrious, and loyal and had worked with Gonzales for years. When Gonzales was White House counsel, Sampson served in the White House personnel office, dealing, among other things, with the selection of U.S. attorneys. He then worked as associate counsel under Gonzales and was one of two go-to guys on U.S. attorneys in Gonzales's office.
Sampson worked closely with then Attorney General John Ashcroft on the appointment of most of his 93 U.S. attorneys. Given the time-consuming nature of such hiring, it's no wonder Sampson was hesitant to act on any suggestions to fire all of them. Indeed, it so consumed him that he rarely took a vacation during all the years served at the White House. Prior to that job, Sampson had worked for Republican Sen. Orrin Hatch of Utah, when Hatch chaired the Judiciary Committee. So Sampson was steeped both in the substance and politics of U.S. attorneys and was viewed by the White House as the single best individual who could handle that sensitive portfolio. In fact, Sampson aspired to become a U.S. attorney himself someday, leading, the New York Times reported, to an awkward struggle between Gonzales, who was rooting for him, and Hatch, who wanted one of his staffers to get the job. Sampson was viewed by some within the department as a hardworking loyalist and by others as a "political thug" or "hack." But he was Gonzales's main man. And yet here was Gonzales having to distance himself from Sampson in order to defend his own credibility. It was necessary but, as Schumer said, not sufficient as a sacrifice.
Even two Republican senators–John Sununu of New Hampshire and Gordon Smith of Oregon–have called for Gonzales's departure.
"In fact, it raises the temperature," said Schumer. "Kyle Sampson will not become the next Scooter Libby, the fall guy," referring to Vice President Cheney's chief of staff, who was recently convicted of obstruction of justice and perjury related to the Iraq prewar intelligence case.
Late Friday, Sampson finally began to tell his side of the story, through his attorney, Bradford Berenson who said his client did not resign because he had misled anybody at the Justice Department or withheld information. "He resigned because, as Chief of Staff, he felt he had let the Attorney General down," said Berenson in a written statement, "in failing to appreciate the need for and organize a more effective political response to the unfounded accusations of impropriety in the replacement process."
Berenson added that a number of officials at the Department knew that the White House and the Justice Department had been discussing the subject of removing U.S. attorneys.
U.S. News has learned that in fact, in early 2004, David Ayres, chief of staff to Gonzales's predecessor, Attorney General John Ashcroft, had begun evaluating weak U.S. attorneys. A former Justice Department official said that Ayres consulted with then Deputy Attorney general, James Comey, who gave him a list of poor performers who could be replaced if the opportunity came to make changes. At the time, Ashcroft believed he would serve a second term. A year later, Sampson also approached Comey who gave him the same list he had given Ayres in early 2004, the official told U.S. News. In principle, Comey had nothing against removing weak prosecutors, but it was unrelated to politics, the official said. And the list Comey gave to Ayres and Sampson, bore little resemblance to the list that Sampson finally came up with, the official said. Indeed, the only person on Comey's list that wound up on Sampson's list was Kevin Ryan, the U.S. Attorney in San Francisco. But on Sampson's list, Ryan was listed as a good prosecutor, not a weak one.
As Gonzales began making the rounds of Capitol Hill this week, essentially pleading for his job, Bush, while expressing support for his friend, was also uttering stern comments about wanting mi abogado to take care of the problem. "Mistakes were made," Bush said, "and I'm frankly not happy about them."
For Democrats, who were in oversight exile until winning back Congress last fall, it has been an adrenaline rush like no other. Many Democrats thought that once they took charge and began a veritable round robin of investigations, they could target Gonzales for the "war on terror" policies.
But Gonzales's Achilles heel proved to be so much more, well, petty. Since the 9/11 attacks, the Bush administration, backed by then White House counsel Gonzales, repeatedly invoked executive privilege and other weighty legal theories about presidential power to push through the "war on terror" legal strategies and resist even the limpest oversight attempts from the Republican-led Congress. That the hiring and firing U.S. attorneys, a core presidential power, could result in Gonzales's undoing is rather ironic.
Still, some of Gonzales's supporters outside the government said he had made the right decisions. "This is a politically driven, make-believe scandal created by a very partisan Congress that is bent on jumping on a weakened president," said a former White House associate counsel, Noel Francisco, who's now in private practice. "This is simply the funnel that Democrats are pouring their policy disputes in, and they are inventing a scandal because they can't win on the actual issues." Asked what Gonzales's chances of survival are, Francisco said, "He's a man who takes things in stride. He'll weather it."
Gonzales and the 'War on Terror'
But even if Gonzales manages to put out this blaze, there undoubtedly will be more. For Democrats, there is no soothing the savaged beast, at least not for a while. So it's likely that Gonzales's tenure will be hobbled by more and more investigations. But in the long run, his legacy will not be defined by the U.S. attorney firings but will come full circle to his role was in crafting and executing the "war on terror" strategies.
And what was that role? By all accounts, it was a central one. When Gonzales was White House counsel, he was part of a small group of lawyers including his deputies, David Leitch and Timothy Flanigan; the Pentagon's general counsel, William Haynes; a Justice Department attorney named John Yoo; and Cheney's then special counsel, now chief of staff, David Addington, who is viewed as a central architect of those antiterrorism strategies. There is a split view as to how Gonzales fit into the group: Some say Gonzales was engaged in a "race" with the others to see "who was tougher than the rest, and how expansive they could be with respect to presidential power," according to a former Justice official. But others say Addington and Flanigan were able to exert greater influence because Gonzales lacked any national security background.
The picture that develops is this: After the 9/11 attacks, Gonzales wasn't the one drunk on the potent mix of fear and power that can goad people into making reckless decisions. Rather he was the enabler, who turned a blind eye and allowed those around him to push through their plans. For instance, it's been widely reported that then National Security Council legal adviser John Bellinger came to Gonzales early in the game and said the White House should authorize a thorough review of those who were held at Guantánamo Bay, Cuba, because he believed not all were bad guys. Gonzales is said to have listened and shown concern without saying anything; Flanigan and Addington did all the talking. Their view was that all the Gitmo detainees were terrorists and that no review was needed. And that's how it happened.
Gonzales was also intimately involved in drafting the executive order authorizing the creation of military commissions to deal with terrorism detainees outside the federal court system. He allowed Addington and Flanigan to leapfrog past the process that had been set up that Bellinger and other officials had been tasked with; instead, the military commission order was drafted and pushed through without a broad review or consensus. And Gonzales also allowed the drafting of the "torture" memos that authorized the CIA and Pentagon to use unorthodox and highly aggressive interrogation techniques that civil rights groups and many in Congress say amounted to torture. And perhaps most important, Gonzales and Addington were the only two officials in the White House who provided legal counsel on the NSA warrantless surveillance program, which allowed the NSA to bypass the federal courts and conduct warrantless surveillance of so-called terrorism suspects on U.S. soil. The legality of that program has yet to be determined.
Under immense domestic and international political pressure, Bush has since rolled back or dumped many of those initiatives and among other things placed the NSA program under the purview of the courts.
But it could be decades before the full scope and impact of all of those "war on terror" initiatives are revealed, as well as Gonzales's detailed role. "I think his legacy will be this history of being willing to play fast and loose with civil liberties and well-established political rights," says Tobias, the University of Richmond constitutional scholar. "A lot of people have died to make sure we have these liberties. And it worries me that in five years, this administration has attempted at every turn to wipe it away."
But Gonzales's supporters have the exactly opposite view. "In the long term, I think this president and this AG will be judged extraordinarily favorably," says Francisco. "Since September 11, there have been no more attacks on the country. Those of us sitting here today have the luxury of believing it's still September 10. The president and the attorney general don't have that luxury."
Many who know Gonzales, even those who have disagreed with the administration's policies, say the attorney general is by no means an ideologue—indeed, far from it. They describe Gonzales as "decent," "affable," "humble," "modest," "gracious," "conscientious," and a "gentle soul." But they say Gonzales's weakness always has been to "somehow miss the bigger picture" that experienced Washington lawyers would perhaps get.
"In a way," says one official, "it's tragic."