At Alberto Gonzales' Senate confirmation hearing on Jan. 6, Sen. Pat Leahy, D-Vt., asked Gonzales, in effect, "Why should a political hack like you get to be attorney general?" Here's how Leahy put it:
[T]here is some concern that if the president wants something, you're going to go ahead and make it work … which works against the idea of the independence of the attorney general, who's there not as the president's attorney general … [but as] the attorney general for the whole United States.
Gonzales replied, in effect, "Well sure, I'm a political hack now, but that's my job. I'm the president's lawyer. When I'm attorney general, I'll no longer be the president's lawyer." Here's how Gonzales put it:
There is a difference in the position of counsel to the president and as attorney general of the United States. As counselor to the president, my primary focus is on providing counsel to the White House and to the White House staff and the president. I have a very limited staff. The staff doesn't have the expertise or the experience in a great many substantive legal issues. All those are decided in the Department of Justice. I do have a client who has an agenda, and part of my role as counselor is to provide advice so that the president can achieve that agenda lawfully. It's a much different situation as attorney general, and I know that. My first allegiance is going to be to the Constitution and the laws of the United States.
I'm inclined to agree with Gonzales. The White House counsel is the president's lawyer. If the interests of the president run counter to the defense of the Constitution, then fussing over the quality of his legal representation is neither a proper nor an adequate response. Whether we want to reward Gonzales with appointment as attorney general for being lawyer to such a president—specifically, for helping him justify torture—is another matter entirely. A parallel example (admittedly an outrageous one) would be Bruce Cutler, former lawyer to mob boss John Gotti, who received some unjustly rough treatment from the feds in the mid-1990s. Let the man defend his client, for Pete's sake. But I neither expect nor want to see Cutler run the Justice Department.
A less outrageous parallel example would be Bernard Nussbaum, who served as White House counsel to President Clinton and, far from being promoted to attorney general, was forced out of office. Nussbaum's sin was failing to cooperate with the various partisan fishing expeditions that came to be known as Whitewater. The issues at stake—for instance, whether authorities might be permitted to conduct an entirely gratuitous search through the files of Nussbaum's deputy, Vince Foster, after Foster committed suicide—stood at a much greater distance from the public interest than whether the United States military ought to loosen its definition of "torture." Nonetheless, conservatives insisted that Nussbaum had to go. Why? Because, they said, Nussbaum wasn't just the president's lawyer. He worked for the American people! Victoria Toensing, former deputy assistant attorney general to President Reagan, could scarcely contain her contempt when asked by the American Lawyer to comment:
This is a prime example of someone—Nussbaum—that has forgotten that in government, you have to listen to people who appear to be lower on the totem pole. Being a senior partner in a large New York law firm doesn't prepare you for that insight. There is a big difference between participating in government and the scorched-earth tactics of litigation.
Nussbaum also got pasted for his lawyerly conduct by Rush Limbaugh and Wall Street Journal editorialist John Fund. Yet none of these people raised the ghost of an objection when Gonzales said his job as White House counsel was to be the president's lawyer, plain and simple. Is there an appeals court decision I missed that extends attorney-client privilege solely to Republican presidents?