Gonzo for GonzoMaybe Alberto Gonzales was brilliant yesterday—and everybody missed it.
Updated Monday, April 23, 2007, at 11:57 AM ET
So, I've changed my mind. On sober second thought, it occurs to me that when I find myself in enthusiastic agreement with "White House insiders" and the National Review that Alberto Gonzales disgraced himself yesterday, I may have missed something important. Assuming the president watched so much as 10 minutes of his attorney general being poleaxed by even rudimentary questions from the Senate judiciary committee, it strains credulity to believe that Gonzales still has Bush's "full confidence."
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StumbleUponUntil you stop to consider that the president wasn't watching the same movie as the rest of us and that Gonzales wasn't reading from the same script. Perhaps what we witnessed yesterday was in fact a tour de force, a home run for the president's overarching theory of the unitary executive.
The theory of the unitary executive is a radical vision of executive power in which the president is the big boss of the entire executive branch and has final say over everything that happens within it. At its core, the theory holds that Congress has very limited authority to divest the president of those powers. An expanded version of this theory was the legal predicate for the torture memo: "In light of the president's complete authority over the conduct of war, without a clear statement otherwise, criminal statutes are not read as infringing on the president's ultimate authority in these areas. … Congress may no more regulate the president's ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield."
One of the key issues in the early battles over unitary executive theory was the president's firing power. In its first incarnations, the notion of a unitary executive shored up the president's claim that he was entitled to fire executive officials—including the independent counsel and agency heads—as the mood took him.
If you watch the Gonzales hearing through this prism (and in this White House, even the bathroom windows look out through that prism), they were a triumph. For six impressive hours, the attorney general embodied the core principles that he is not beholden to Congress, that the Senate has no authority over him, and that he was only there as a favor to them in their funny little fact-finding mission.
Consider how Gonzales rebuffed Republican Sen. John Cornyn when he suggested a future Senate hearing about the convictions of two Texas border patrol officers. (That's executive branch business, son.) Consider the attorney general's inability to explain why Kyle Sampson pushed ahead with a plan to do away with Senate confirmation for U.S. attorneys, if as he claimed, Gonzales didn't approve it. (That's between me and the president and Kyle Sampson, son.) Consider Gonzales' skirmish with Democratic Sen. Chuck Schumer over who bore the burden of proof at the hearings. (How can there be a burden of proof when you have no authority to sit in judgment over me, son?) And listen to him tell Republican Sen. Charles Grassley: "I'm here to provide what I know, what I recall as to the truth in order to help the Congress help to complete the record."
Finally, consider this telling colloquy with Republican Sen. Lindsey Graham:
I tried to have dialogue with the Congress, to try to be as forthcoming as I can be, to reassure the Congress. I've tried to inform the Congress that I don't have anything to hide. … I didn't say no to the document request. I didn't say, "No, you can't interview" to my internal staff. … I've done—everything I've done has been consistent with the principle of pursuing truth and accountability.
This man was doing the Senate a favor by showing up at all. Turning over documents? He deserves a medal!
This record reflects either a Harvard-trained lawyer—and former state Supreme Court judge—with absolutely no command of the facts or the law, or it reveals a proponent of the unitary executive theory with absolutely nothing to prove. Gonzales' failure to even mount a defense; his posture of barely tolerating congressional inquiries; his refusal to concede that he owed the Senate any explanation or any evidence; his refusal to even accept that he bore some burden of proof—all of it tots up to a masterful display of the perfect contempt felt by the Bush executive branch for this Congress and its pretensions of oversight. In the plainest sense, Gonzales elevated the Bush legal doctrine of "Because I said so" into a public spectacle.
Viewed in that light, Gonzales did exactly what he needed to do yesterday. He took a high, inside pitch to the head for the team (nobody wants to look like a dolt on national television) but hit a massive home run for the notion that at the end of the day, congressional oversight over the executive branch is little more than empty theatre.
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Remarks from the Fray:
Gonzalez as pitchman for unitary executive is a little like Cheney as poster boy for gun safety. With even the Republicans throwing up their hands in disgust, what kind of credibility can Bushian constitutional extremism expect to have in the future?
--FritzGerlich
(To reply, click here.)
Pretty simple scenario:
In Congressional investigations up to this point, the Attorney General and his staff have provided information that was demonstrably false. Now their aggregate testimony indicates that either the AG or his staff have committed perjury in their sworn testimony. There is past information in the record of a pattern of lying to Congress (FISA wiretaps, Abu Ghraib, secret prisons) by the AG.
Bush's statement of strong support for Gonzalez is a political calculation. He is daring the Senate to impeach Gonzalez. Why? He thinks (like David Broder) that Americans don't want the gore of an impeachment battle. He thinks that is how the Democrats will "Overplay their hand."
I'm not so sure. I think the Democrats have to be reluctant, and have to publicly call the President out, saying "you've got to do something about this liar, or we will." But if they do it well, they can slowly, carefully call Bush's bluff. After all, how can Arlen Specter take his words back now? So they have the votes in committee to recommend action.
Also, I think Bush underestimates his exposure. If there is an impeachment proceeding for Gonzalez, there is a strong risk that Karl Rove and Dick Cheney, as well as many lower level people, will be called to testify about the FISA, voting suppression operation, relationships with Abramoff and the corrupt congressmen, the private email system and its legality under the records act, etc.
At some point, in this case early, the Republicans who want to be re-elected in 2008 will have to jettison first Gonzalez, then Rove, then Cheney, and maybe - in the end - Bush.
Bush would be wise to end it with Gonzalez' resignation.
--certainly
(To reply, click here.)
I agree that the testimony was a cross between "yeah, we admit there were big flaws in the execution" with "this is not subject to congressional oversight anyway, so bug off". But I question whether this approach was taken in accordance with some grandiose theory of the executive, or if it was just the pragmatic thing to do.
I think the White House's plan all along was just to wait this out. They figured that eventually it will blow over unless there is an indictment, and there can't be an indictment without a prosecutor and a grand jury, and, prior thereto, some general suspicion of criminal wrongdoing. But there is no suspected criminal act other than the possibility of false testimony to Congress, and no one wants another prosecution based only on perjury or obstruction of justice, which would likely be impossible to prove in any event.
This is about the chasm between what constitutes impropriety and what constitutes illegality. Toward the end of Gonzales' testimony, Senator Whitehouse commented on this distinction, arguing that interference with the work of prosecutors becomes improper long before there is any attempt to derail an ongoing investigation for political purposes. The line of impropriety gets crossed, argued Senator Whitehouse, as soon as there is "any effort to add a partisan or political dimension into a U.S. attorney's conduct of his office, irrespective of whether it's intended to affect a particular case or not."
But if impropriety is all there is, then the intensity level really has nowhere to go from here but down, and the administration knows this.
Gonzales had to take a beating, but in the end that's all it will be. And politically, it is much better at this point that he remain at his post, or else it will appear that the Administration was weak and gave in to pressure. Congress has had its inquiry, and soon the American public will lose interest unless someone gets accused of something other than "impropriety".
--inkblot
(To reply, click here.)
(4/23)