It is natural that the resignation of Attorney General Alberto Gonzales should cause speculation about the immediate effect upon the office of the attorney general and the Department of Justice. Obviously, both have been weakened. This weakness, however, cannot be attributed to the notion that the people who have taken over acting roles are not of the same caliber as those who have left. Paul Clement, the current solicitor general who is slated to be acting attorney general, is a superb lawyer who is unlikely to make the missteps that doomed Gonzales. However, the fact that he is “acting,” and therefore unlikely to be in the post long, weakens him politically in the coming battles with the Democratic majority in Congress. He is likely to play a caretaker role rather than to initiate policy changes that the Democrats will make controversial. The prospect, then, is for a Department of Justice that conducts routine business adequately, but is at least partially paralyzed when it comes to major new initiatives. At a time of national insecurity it is dangerous, and it is the Democrats who will make it so.
But the problem created by Gonzales’s resignation is likely to spread well beyond the DOJ and hamstring the remainder of George Bush’s administration. The president must soon nominate a successor to Gonzales and Senate Democrats are surely contemplating making the confirmation of that person contingent upon the appointment of a special prosecutor. The appointee will inevitably be charged, among other things, with investigating the firing of eight U. S. attorneys, possible perjury by Gonzales and others who testified before the Senate Judiciary Committee, and whatever additional matters Senate Democrats’ fertile imaginations can pack into the special prosecutor’s charter. Grand juries will be convened, subpoenas issued, witnesses badgered, documents demanded from the White House, and so on, through the full repertoire of special prosecutors’ antics.
If the Senate Democrats insist, as they surely will, that they approve of the person named, then we are guaranteed of not getting a prosecutor sympathetic to Bush. Richard Nixon was caught in that trap when he removed Richard Kleindienst as attorney general and nominated Elliot Richardson. Richardson, though a highly regarded veteran of several Cabinet posts, was required not only to promise a special prosecutor, but to name his candidate and to draft a charter satisfactory to the Judiciary Committee, guaranteeing the man’s independence. Though the man he named, Archibald Cox, performed well, special prosecutors in general have a very mixed record for devotion to justice rather than to partisan behavior, self-aggrandizement, or both. Recall, for instance, the highly political performance of Lawrence Walsh, who seemed intent upon blackening the reputation of the first Bush and who forced plea bargains by spending taxpayers’ money in amounts that his prey could not match. More recently, we have witnessed the disgraceful performance of Patrick Fitzgerald, who, knowing from day one who had leaked the name of Valerie Plame and that no crime had been committed, not only continued his “investigation” but persuaded those with knowledge of the truth to remain silent. The upshot was press and public suspicion of the president and of Karl Rove for months on end. Moreover, Fitzgerald is responsible for the blatant miscarriage of justice in the conviction of Scooter Libby, whose scandal amounted to recollecting a phone conversation differently from Tim Russert, a feat reminiscent of Mike Nifong’s less successful adventures in prosecutorial abuse.
A special prosecutor with unlimited funds, a soon-developed addiction to publicity, and a broad mandate, will rarely wrap up his investigation quickly and without indicting someone. This means that for the rest of George W. Bush’s term, the administration will be preoccupied with document searches, witness preparation, countering leaks and a bad press. It will also likely have to litigate against the special prosecutor on matters such as executive privilege. At a time when the administration, the press, and the public should be focused on Iraq, Iran, and the worldwide struggle against jihadists, we will instead be preoccupied with furious partisan battles over essentially irrelevant questions. The price to America of driving Alberto Gonzales from office, if such a scenario unfolds, will be heightened polarization and peril.
– Judge Robert H. Bork is a distinguished fellow of the Hudson Institute.