Gonzales: It Depends On What the Meaning of “Improper” Is

By Scott Horton

The key word in Gonzales's defense in the latest iteration is “improper.” Neither he nor any of his staffers has done anything in replacing these U.S. attorneys which is “improper,” says Gonzales. That's an awfully vague term. Note that Gonzales doesn't think that torture is “improper.” He believes that the system of extraordinary renditions and torture-by-proxy is perfectly proper. He doesn't think warrantless surveillance is “improper.” He doesn't have any problem with skirting the FISA statute. In the legal world of Alberto Gonzales, the president has expansive commander-in-chief powers that free him from the pesky requirements of criminal law. In the words of a famous predecessor of Bush, “If the president does it, then that means it's legal.”

This predisposition has to be coupled with the view, already articulated by Gonzales, that the appointment of U.S. attorneys is “political,” and that the essential character of the U.S. attorneys is “political.” This is exactly the opposite of the view taken by George Washington in his famous 1789 note to his attorney general—he felt it essential to remove the appointments in this branch from any suggestion of “politics.” But the use of this term has special importance to a man like Gonzales, since it opens the door to almost limitless presidential discretion. And this is almost certainly the reason for Gonzales's words.

Senator Sheldon Whitehouse followed up very effectively on these points.