Later, it's Sen. Dick Durbin's turn to try to get Gonzales to elucidate his views on the separation of powers. Can the president immunize people from prosecution for torture? Gonzales restates that it's theoretically possible for Congress to pass an unconstitutional law that the president can justifiably ignore. "Has the president ever invoked that authority?" Durbin asks. No, Gonzales says. When Leahy's turn comes around again, the ranking Democrat complains, "You never answered my question." But Gonzales has answered. Leahy and the Democrats just don't like his answer.
Sen. John Cornyn of Texas, a Republican, comes to Gonzales' defense. President Clinton's solicitor general, Walter Dellinger, wrote in 1994 that the president can refuse to execute laws he considers unconstitutional, Cornyn notes. Sen. Russ Feingold dismisses this during his turn to speak. There's a difference between not enforcing a statute and authorizing people to break the law, he says. Look, Gonzales reiterates, that 2002 memo is no longer administration policy. And on top of that, we don't torture people. But, Feingold asks, does President Bush have the power to authorize violations of criminal law? Gonzales makes some noise about "a presumption of constitutionality" and his oath as attorney general to defend congressional statutes, then gives his real answer: I'd take it very seriously if I ever advised the president to do such a thing. "So the president's above the law?" Feingold asks. No, Gonzales says, but he can choose not to enforce unconstitutional laws. That's not what I'm asking, Feingold complains. We don't torture people, Gonzales says. Feingold gives up and pleads, Will you just let us know instead of waiting two years next time?
Durbin tries to get Gonzales to clarify. Can U.S. personnel, under any circumstances, engage in torture? Gonzales still can't muster a definitive "no." "I don't believe so, but I'd want to get back to you on that," he says. "There are a number of laws that prohibit that."
By day's end, Leahy's frustration drives him to a hilarious tangential inquiry as to how Gonzales vetted Bernie Kerik, President Bush's withdrawn nominee for secretary of homeland security. (Gonzales protests that Kerik wasn't nominated. "It was an announcement of an intent to nominate," he says.) Leahy wants to know whether Gonzales knew about Kerik's so-called "9/11 apartment," or his extramarital affair, or best of all, whether the nanny that he said he didn't pay Social Security taxes for even existed. No one knows her name or what country she comes from, Leahy says. "Do you know whether there ever was a nanny?" Gonzales answers by saying that Kerik is no longer under consideration. "Maybe there was such a nanny," Leahy muses. "I don't know."
Finally, Harold Hongju Koh, a Yale professor of international law (and dean of the Yale Law School), solves the riddle—about the "commander-in-chief override" not the mysterious nanny—by proposing a simple question for Gonzales. He tells the Judiciary Committee, "A simple question you could have asked today was, 'Is the anti-torture statute constitutional?" If Gonzales answers yes, then he does not believe the president can override the statute. Mystery solved. Only one problem with this professorial inquiry: By the time Koh testified, Gonzales was already gone.