Picks for the next attorney general.

Picks for the next attorney general.

Picks for the next attorney general.

The law, lawyers, and the court.
Aug. 27 2007 8:03 PM

Picks for Attorney General

The likely candidates and our own wacky ideas.

Click here to read more of Slate's coverage of Alberto Gonzales.

Now that Alberto Gonzales is gone, the next obvious question is, "Who gets his job?"  The truth is that we have no idea. But we can say this much: In appointing a successor for Gonzales, Team Bush must thread the needle between protecting itself with a loyal insider and mollifying Democrats in Congress who want to know where the bodies at the Department of Justice are buried. On a loftier note, the administration must find someone capable of rebuilding an admittedly battered Justice Department and restoring national confidence in the Rule of Law (remember that concept?), while fending off the specter of a special prosecutor nosing around in Karl Rove's e-mails. More than one observer has suggested that there is a name for such a creature: a Democrat. Someone who would placate liberals and signal change, yet work with the Bush administration. The perfect Teflon surprise choice.

Yes, we know. We thought it was hilarious too.

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In any event, for those of you placing bets with your bookies, we've rounded up the best or most likely candidates for AG, and offered some sense of their pros and cons and the odds that they match the type the president seeks. (Because tomorrow we need something new to be wrong about.) From most to least plausible:

The Fixer
When Michael Chertoff was confirmed as head of the Department of Homeland Security in early 2005, Democrats as well as Republicans lined up to call him a "straight shooter." (They say this of former deputy attorney general James Comey, aka Jimmy Stewart, a lot, too.) The Senate vote in Chertoff's favor was 98 to zip. Never mind that as an assistant to former Attorney General John Ashcroft, Chertoff may have known about the infamous DoJ memos that approved waterboarding and defined torture so narrowly that you basically have to induce organ failure or death to do it. (He says he can't really remember.) Or that he ran the post-9/11 operation in which 5,000 Muslim Americans were rounded up, most of them with little or no cause. Chertoff succeeded in distancing himself from those torture memos by saying he hadn't approved them and didn't embrace them. And when he admitted to mistakes and excesses relating to the roundups, he was praised for his candor.

Given that the Democrats have already given Chertoff a pass once, can they really fuss now if Bush taps him for the new attorney general spot? Yes, over Katrina: As head of DHS, Chertoff was Mike Brown's boss, and thus on the hook for the federal government's disastrous performance after the hurricane, or lack thereof. So, the Democrats could pick a fight over his management skills—which DoJ certainly needs lots of in the wake of the Gonzales crackup.

Democratic senators might well doubt whether Chertoff the Consummate Conservative—longtime Federalist Society member, one-time special counsel to the Clinton-scourge Whitewater commission—will truly shake DoJ's skeletons out of their closets. Chertoff isn't likely to be the man who helps answer those looming unanswered questions: Who did draw up the list of U.S. attorneys to be fired, what was the White House's involvement, were U.S. attorneys targeted for failing to prosecute Democrats or for going after Republicans? For this part of the job, Chertoff looks more like the Fixer to us than the Straight Shooter of yore. On the other hand, he'll have to say something when the inspector general and Office of Professional Responsibility at DoJ issue their long-awaited reports on the Gonzales fracas. And there's also this: Chertoff is a good enough lawyer, and has enough experience at Justice, to let the career lawyers go back to making their own decisions about which cases to bring in areas like voting rights and employment discrimination. Or at least, so we can all hope.

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The Stealth Candidate
So, what is Solicitor General, soon-to-be-Acting Attorney General Paul Clement, anyhow? Chopped liver? How did it come to pass that the last honest, well-respected guy inside the Justice Department is being named interim AG instead of the real thing? Frankly, we can't think of a reason. OK. We admit it. We're biased. Watching Clement argue cases before the Supreme Court is like watching a constitutional sonnet. Clement at the lectern is a thing of geeky beauty. And time and again we hear that despite the occasional lapse in which he accidentally claims that the Bush administration doesn't torture people and such, Clement has been inclined to remain above the ugly fray at DoJ. He's said to have pushed back against the sweepingly permissive view of the law painted by some other Bush lawyers. And he has been too busy arguing cases to conspire to get people fired based on their political views.

Recall that Clement is a former member of the Federalist Society who's clerked for Antonin Scalia and Judge Lawrence Silberman of the U.S. Court of Appeals for the D.C. Circuit. But his admirers include Sen. Russ Feingold, D-Wis. One theory is that the president plans to leave in Clement indefinitely, while playing at selecting a permanent successor. That way, Bush could keep his promise not to make a recess appointment without having to go through a confirmation process for a while. Our view? Maybe not so bad. Give Chopped Liver his shot.

The Mystery Man
Lots of mentions today—well, at least on CNN—of Larry D. Thompson, former deputy attorney general under John Ashcroft, who is now senior vice president and general counsel of PepsiCo Inc. Thompson's primary attractions as a candidate are that nobody seems to recall much more about him than these top two lines of his résumé and that he would be the country's first African-American attorney general.

To fill out the picture: Thompson helped oversee prosecution of corrupt Enron executives. Good. He also signed off on controversial early Bush administration rendition policies. Bad. As deputy attorney general, Thompson once supported fired U.S. attorney John McKay in the investigation of a slain assistant U.S. attorney in Seattle. Good. But Thompson is said to be the architect of the bizarre, if ingenious, plot to discredit Anita Hill's testimony against Clarence Thomas by floating the crazy notion that Hill suffered from sexual delusions and phobias and believed that all men sexually harassed her. If true, then bad.

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While there's a lot to be said about the allure of a candidate who is well outside the radioactive nuclear core of the Bush administration, and even more about the possibility of replacing the first Hispanic AG with the first black one, all arrows point to the likelihood that Thompson would rather stick with the sweet sugary team at Pepsi than wade back into the mess that is the Bush Justice Department. According to senior administration officials, that's why Thompson has repeatedly turned down offers to return to the government in the past. Why wade into someone else's fight over warrantless wiretapping when you can sit at your desk and rock out to this?

The Jimmy Stewart
What if the president wants an attorney general who absolutely reeks of wholesomeness and integrity; someone who is both of the Bush worldview and also somewhat above it? This is the come-hither for former Deputy Attorney General James Comey. With his spring testimony about the hospital room confrontation between Gonzales and his former boss John Ashcroft, Comey has become the heartthrob of the political and legal left—even though he once gunned for the death penalty for Zacarias Moussaoui and argued that José Padilla had no right to a defense lawyer.

There is no one who doesn't believe that Comey is a belt and suspenders Ashcroft conservative. But so what, because there is also no one who believes that he's a White House doormat. In a sense, that makes Comey the perfect compromise candidate. Congressional Democrats are so desperately in love with him that they'd tiptoe around his politics. Conservatives could see a true believer whose principal conviction is that the independence of the Justice Department from the White House borders on sacred. As Comey once testified, "If that [partisan firings of U.S. attorneys] was going on, it strikes at the core of what the department is. You can't have assistant U.S. attorneys in there based on their party affiliation. … You just cannot have that . . . I don't know any way you can get the department's reputation back about that." Comey's sweet Mr. Smith Goes to Washington idealism would be a tonic for the White House; it would affirm that the old way was the wrong way.

But of course, the chance of this White House rewarding Comey's past idealism and honesty with a job is close to zero. This is not an administration that rewards those who bite it in the ass (see We're-on-Crack below). Gonzales held on to his job for six months largely because he was happy to fold the DoJ into the White House operation—a clear signal that the president is less interested in a Jimmy Stewart than a new Fredo.

The We're-on-Crack Choice
If President Bush really wanted to show that he had nothing to hide at DoJ, to demonstrate how large-hearted he is, and to prove that he values hard-charging lawyers, he could always pick Chicago U.S. Attorney Patrick Fitzgerald to replace Gonzales. Fitzgerald is also a Republican loyalist of a sort. He became U.S. attorney in 2001 as Bush's choice for the job. But of course, Fitzgerald's turn as the special prosecutor in the Scooter Libby case—for which he was tapped by none other than Comey—means that he's got no future in this administration. He was more likely to join the group of fired U.S. attorneys (his name was floated, if only briefly, admitted former Gonzales Chief of Staff Kyle Sampson) than to win a promotion now. In another administration, Fitzgerald's victory in the Libby case would have made him the perfect political cover now. But not in this one, because cover doesn't matter anymore. Punishing disloyalty does. We'd like to think the next attorney general—other names being bandied about are former Solicitor General Ted Olson, Republican Sen. Orrin Hatch, and Securities and Exchange Commission head Christopher Cox—will be a lawyer first and a loyalist second. But events of the last seven years argue otherwise.

Meanwhile, it's worth recognizing that this is a mess that runs both wide and deep: Right now, the DoJ boasts no attorney general, no deputy attorney general, no No. 3, and no head of the Office of Legal Counsel. What if something legal were to happen in America? As one former DoJ lawyer asked us today, "Who has the stature and independence to fix all of this?" Maybe the truth is: nobody the Bush administration would ever pick.